before the energy facility siting council of the state of oregon · 18-09-2015 · swa state...

BEFORE THE ENERGY FACILITY SITING COUNCIL

OF THE STATE OF OREGON

In the Matter of the Application for a Site Certificate for the Perennial Wind Chaser Station

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FINAL ORDER

Issued by

Energy Facility Siting Council

September 18, 2015

Perennial Wind Chaser Station Final Order September 18, 2015 i

Table of Contents I. INTRODUCTION .................................................................................................................................................. 1 II. DESCRIPTION OF THE FACILITY ........................................................................................................................... 2

II.A. LOCATION AND SITE BOUNDARY ................................................................................................................................ 2 II.B. THE FACILITY .......................................................................................................................................................... 3

III. PROCEDURAL HISTORY ..................................................................................................................................... 9 III.A. NOTICE OF INTENT ................................................................................................................................................. 9 III.B. APPLICATION FOR SITE CERTIFICATE ......................................................................................................................... 10 III.C. COUNCIL REVIEW PROCESS .................................................................................................................................... 11

IV. EVALUATION OF COUNCIL STANDARDS .......................................................................................................... 12 IV.A. GENERAL STANDARD OF REVIEW [OAR 345-022-0000] ........................................................................................... 13

IV.A.1. General Standard of Review ................................................................................................................... 14 IV.B. ORGANIZATIONAL EXPERTISE [OAR 345-022-0010] ................................................................................................ 18

IV.B.1. Organizational Expertise: Findings of Fact.............................................................................................. 18 IV.B.2. Organizational Expertise: Conclusions of Law ........................................................................................ 22

IV.C. STRUCTURAL STANDARD [OAR 345-022-0020] ...................................................................................................... 23 IV.C.1. Structural Standard: Findings of Fact...................................................................................................... 23 IV.C.2. Structural Standard: Conclusions of Law ................................................................................................ 31

IV.D. SOIL PROTECTION [OAR 345-022-0022] .............................................................................................................. 31 IV.D.1. Soil Protection: Findings of Fact ............................................................................................................. 31 IV.D.2. Soil Protection: Conclusions of Law ........................................................................................................ 38

IV.E. LAND USE [OAR 345-022-0030] ......................................................................................................................... 38 IV.E.1. Land Use: Findings of Fact ...................................................................................................................... 40 IV.E.2. Land Use: Conclusions of Law ............................................................................................................... 116

IV.F. PROTECTED AREAS [OAR 345-022-0040] ............................................................................................................ 116 IV.F.1. Protected Areas: Findings of Fact .......................................................................................................... 118 IV.F.2. Protected Areas: Conclusions of Law .................................................................................................... 125

IV.G. RETIREMENT AND FINANCIAL ASSURANCE [OAR 345-022-0050] ............................................................................. 125 IV.G.1. Retirement and Financial Assurance: Findings of Fact ......................................................................... 125 IV.G.2. Retirement and Financial Assurance: Conclusions of Law .................................................................... 132

IV.H. FISH AND WILDLIFE HABITAT [OAR 345-022-0060] .............................................................................................. 132 IV.H.1. Fish and Wildlife Habitat: Findings of Fact ........................................................................................... 132 IV.H.2. Fish and Wildlife Habitat: Conclusions of Law ...................................................................................... 147

IV.I. THREATENED AND ENDANGERED SPECIES [OAR 345-022-0070] ............................................................................... 147 IV.I.1. Threatened and Endangered Species: Findings of Fact .......................................................................... 147 IV.I.2. Threatened and Endangered Species: Conclusions of Law..................................................................... 155

IV.J. SCENIC RESOURCES [OAR 345-022-0080] ........................................................................................................... 156 IV.J.1. Scenic Resources: Findings of Fact ......................................................................................................... 156 IV.J.2. Scenic Resources: Conclusions of Law .................................................................................................... 163

IV.K. HISTORIC, CULTURAL AND ARCHAEOLOGICAL RESOURCES [OAR 345-022-0090] ........................................................ 163 IV.K.1. Historic, Cultural, and Archaeological Resources: Findings of Fact ...................................................... 163 IV.K.2. Historic, Cultural, and Archaeological Resources: Conclusions of Law ................................................. 166

IV.L. RECREATION [OAR 345-022-0100] .................................................................................................................... 167 IV.L.1. Recreation: Findings of Fact .................................................................................................................. 167 IV.L.2. Recreation: Conclusions of Law ............................................................................................................. 176

IV.M. PUBLIC SERVICES [OAR 345-022-0110] ............................................................................................................. 176 IV.M.1. Public Services: Findings of Fact .......................................................................................................... 176 IV.M.2. Public Services: Conclusions of Law ..................................................................................................... 187

IV.N. WASTE MINIMIZATION [OAR 345-022-0120] ..................................................................................................... 187 IV.N.1. Waste Minimization: Findings of Fact .................................................................................................. 188 IV.N.2. Waste Minimization: Conclusions of Law ............................................................................................. 194

IV.O. SITING STANDARDS FOR TRANSMISSION LINES [OAR 345-024-0090] ....................................................................... 194

Perennial Wind Chaser Station Final Order September 18, 2015 ii

IV.O.1. Siting Standards for Transmission Lines: Finding of Fact ..................................................................... 194 IV.O.2. Siting Standards for Transmission Lines: Conclusions of Law ............................................................... 196

IV.P. NOISE CONTROL REGULATIONS [OAR 340-035-0035] ........................................................................................... 196 IV.P.1. Noise Control Regulations: Findings of Fact .......................................................................................... 199 IV.P.2. Noise Control Regulations: Conclusions of Law .................................................................................... 203

IV.Q. REMOVAL-FILL.................................................................................................................................................. 203 IV.Q.1. Removal-Fill: Findings of Fact ............................................................................................................... 203 IV.Q.2. Removal-Fill: Conclusions of Law.......................................................................................................... 205

IV.R. GROUND WATER ............................................................................................................................................... 205 IV.R.1. Ground Water: Findings of Fact ............................................................................................................ 206 IV.R.2. Ground Water Act: Conclusions of Law ................................................................................................ 208

IV.S. CARBON DIOXIDE STANDARD ............................................................................................................................... 208 IV.S.1. Carbon Dioxide Findings of Fact ............................................................................................................ 216 IV.S.2. Carbon Dioxide Standard: Conclusions of Law ...................................................................................... 228

VI. FINAL CONCLUSIONS AND ORDER ................................................................................................................ 228

Table of Tables Table B-1 Building Dimensions ...................................................................................................................................... 4 Table C-1 Maximum Credible Earthquake Source Magnitude and Epicentral Distance from the Station .................. 27 Table C-2 Maximum Credible Earthquake Source Magnitude and Epicentral Distance from the Step-up Substation ..................................................................................................................................................................................... 27 Table F-1 Distance of Protected Areas from the Energy Facility Site and Step-up Substation ................................... 119 Table G-1 Applicant’s Retirement Cost Estimate ....................................................................................................... 128 Table G-2 Applicant’s Retirement Cost Estimate Alternative Scenario with Zero Liquid Discharge ........................... 130 Table H-1 Potential Permanent and Temporary Disturbances (in acres) to Each Habitat Type ................................. 139 Table P-1 Standards for New Industrial and Commercial Noise Sources ................................................................... 200 Table P-2 Lowest Measured Ambient Hourly Average L50 ........................................................................................ 201

Table Q-1 Summary of Waters of the State within the Study Area ........................................................................... 204 Table S-1 Carbon Dioxide Emission Factor Calculations without a ZLD System ........................................................ 217 Table S-2 Carbon Dioxide Emission Factor Calculations with a ZLD System .............................................................. 218

APPENDICES Appendix A: Site Certificate Conditions Appendix B: Revegetation and Noxious Weed Control Plan Appendix C: Restoration Monitoring Plan Appendix D: Biological Monitoring Plan Appendix E: Memorandum of Understanding for Monetary Path Payment Appendix F: Index of Comments Received on the Record of the Public Hearing Appendix G: Site Certificate

Perennial Wind Chaser Station Final Order September 18, 2015 iii

Acronyms and Abbreviations APLIC Avian Powerline Interaction Committee ASC Application for Site Certificate BLM Bureau of Land Management BPA Bonneville Power Administration Council Oregon Energy Facility Siting Council CUP Conditional Use Permit dBA Sound Pressure Level department Oregon Department of Energy DEQ Department of Environmental Quality DOGAMI Department of Geology and Mineral Industries DPO Draft Proposed Order DSL Department of State Lands EFSC Oregon Energy Facility Siting Council EFU Land Zoned For “Exclusive Farm Use” EMF Electric and magnetic Fields EPC Engineering, Procurement and Construction ESCP Erosion and Sediment Control Plan FAA Federal Aviation Administration GL Grassland Habitat Subtype kV Kilovolt(s) LCDC Land Conservation and Development Commission MCE Maximum Considered Earthquake mG Milligauss MW Megawatt(s) NOI Notice of Intent NPDES National Pollutant Discharge Elimination System NRCS National Resource Conservation Service NRHP National Register of Historic Places NWI National Wetlands Inventory NWR National Wildlife Refuge O&M Operations and Maintenance OAR Oregon Administrative Rule ODA Oregon Department of Agriculture ODF Oregon Department of Forestry ODFW Oregon Department of Fish and Wildlife ODOE Oregon Department of Energy ODOT Oregon Department of Transportation OPRD Oregon Parks and Recreation Department ORBIC Oregon Biodiversity Information Center ORNHIC Oregon Natural Heritage Information Center ORS Oregon Revised Statute

Perennial Wind Chaser Station Final Order September 18, 2015 iv

OWRD Oregon Water Resources Department PUC Oregon Public Utility Commission RAI Request for Additional Information SAG Special Advisory Group SCADA Supervisory, Control and Data Acquisition SCF Standard Cubic Feet SHPO Oregon State Historic Preservation Office SSURGO Soil Survey Geographic Database SWA State Wildlife Area USACE United States Army Corps of Engineers USFWS United States Fish and Wildlife Service USGS United States Geological Survey WGS Washington Ground Squirrel or Washington Ground Squirrel Habitat Subtype WPCF Water Pollution Control Facility ZVI Zone of Visual Influence

Perennial Wind Chaser Station Final Order September 18, 2015 Page 1

I. INTRODUCTION 1 2 This final order addresses the Application for a Site Certificate (ASC) for the construction and 3 operation of the Perennial Wind Chaser Station to be located in Umatilla County, Oregon. The 4 applicant is Perennial-WindChaser, LLC. The Energy Facility Siting Council (the “Council”) issues 5 this final order in accordance with Oregon Revised Statute (ORS) 469.370(1), based on its 6 review of the ASC, the Oregon Department of Energy’s (department) draft proposed order and 7 proposed order, and the comments and recommendations received on the application by state 8 agencies, local government, tribal organizations and the public. 9 10 It is the public policy of the State of Oregon that “the siting, construction and operation of 11 energy facilities shall be accomplished in a manner consistent with protection of the public 12 health and safety and in compliance with the energy policy and air, water, solid waste, land use 13 and other environmental protection policies of this state.”1 ORS 469.320 requires a site 14 certificate from the Council before construction of a “facility.” ORS 469.300(14) defines 15 “facility” as an “energy facility together with any related or supporting facilities.” The proposed 16 Perennial Wind Chaser Station qualifies as an “energy facility” under the definition in ORS 17 469.300(11)(a)(A) as it is a proposed combustion turbine power plant with a nominal electric 18 generating capacity of at least 25 megawatts. The definitions contained in ORS 469.300 and 19 Oregon Administrative Rule (OAR) 345-001-0010 apply to terms used in this final order. 20 21 A site certificate is a binding agreement between the State of Oregon and the applicant, 22 authorizing the applicant to construct and operate a facility on an approved site, incorporating 23 all conditions imposed by the Council on the applicant.2 A site certificate issued by the Council 24 binds the state and all counties, cities and political subdivisions of Oregon. Once the Council 25 issues the site certificate, any affected state agency, county, city or political subdivision must, 26 upon submission by the applicant of the proper applications and payment of the proper fees, 27 but without hearing or other proceeding, promptly issue the permits, licenses and certificates 28 addressed in the site certificate.3 The Council has continued authority over the site for which 29 the site certificate is issued and may inspect the site at any time in order to ensure that the 30 facility is operated consistently with the terms and conditions of the site certificate.4 31 32 The Council does not have jurisdiction over matters that are not included in and governed by 33 the site certificate or amended site certificate, including design‐specific construction or 34 operating standards and practices that do not relate to siting, as well as matters relating to 35 employee health and safety, building code compliance, wage and hour or other labor 36 regulations, or local government fees and charges. 37

1 ORS 469.310. 2 ORS 469.300(26). 3 ORS 469.401(3). 4 ORS 469.430.


1 In addition to the conditions included in this final order, the site certificate holder is subject to 2 the conditions and requirements contained in the rules and standards of the Council and in 3 local ordinances and state laws in effect on the date the certificate is executed. Under ORS 4 469.401(2), upon a clear demonstration of a significant threat to the public health, safety, or 5 the environment that requires application of later‐adopted laws or rules, the Council may 6 require compliance with such later‐adopted laws or rules. The Council recognizes that many 7 specific tasks related to the design, construction, operation, and retirement of the facility will 8 be undertaken by the applicant’s agents or contractors. Nonetheless, the certificate holder 9 remains responsible for ensuring compliance with all provisions of the site certificate. 10 11 Based upon its review, including conclusions contained in this final order, the Council approves 12 the application and grants issuance of a site certificate for the Perennial Wind Chaser Station, 13 subject to the conditions set forth in this final order. 14 15 II. DESCRIPTION OF THE FACILITY 16 17 The information presented in this section is based upon details provided in the Application for 18 Site Certificate (ASC). Section II.A describes the location and site boundary and Section II.B 19 describes the facility. 20 21 II.A. Location and Site Boundary 22 23 As defined in OAR 345-001-0010(55), the term “site boundary” means the perimeter of the site 24 of a proposed energy facility, its related or supporting facilities, all temporary laydown and 25 staging areas and all corridors proposed by the applicant. The term “energy facility site” 5 26 means all land upon which an energy facility is located or proposed to be located.6 27 28 The energy facility site is located in Umatilla County, approximately 5 miles southwest of 29 Hermiston, Oregon, adjacent to the existing Hermiston Generating Plant in Township 4 North, 30 Range 28 East, Willamette Meridian. From the energy facility site, the supporting natural gas 31 lateral pipeline would be routed 4.63 miles south and the transmission line would be routed 32 11.59 miles north. Overall, the applicant estimates approximately 23 acres of permanent 33 impact and 37 acres of temporary impact.7 The facility would be accessed via Westland Road, 34 which provides access to Interstate Highways 82 and 84. The energy facility site is currently 35 clear of any significant structures or vegetation.8 36 37

5 The term ‘energy facility’ means only the electric power generating plant while the term ‘facility,’ as

defined in ORS 469.300 (14), means the energy facility together with any related or supporting facilities. 6 OAR 345-001-0010(53) 7 ASC, Exhibit C, C-2. 8 ASC, Exhibit B, B-2.


II.B. The Facility 1 2 A. The Energy Facility 3

4 Perennial-WindChaser, LLC proposes to construct and operate up to four General Electric 5 LMS100 (or equivalent) natural gas-fired combustion turbine generators in simple cycle, 6 producing up to 415 megawatts (MW) of electric power. In this type of system, natural gas is 7 combusted in the combustion turbine generator (CTG), then expanded to drive the turbine 8 generator, producing electric power. 9 9 10 As explained in the ASC, the proposed energy facility or “Station” would include four generating 11 units, each consisting of one GE LMS100 combustion turbine, intercooler heat exchanger, 12 electrical generator, selective catalytic reduction unit, catalytic oxidation unit, and stack. The 13 applicant will only burn natural gas, and each generating unit would be connected to a 14 common cooling tower.10 15 16 OAR 345-001-0010(40) defines a “non-base load power plant” as a “fossil-fueled generating 17 facility that is limited by the site certificate to an average number of hours of operation per year 18 of not more than 6,600 hours. For a non-base load power plant designed to operate at variable 19 load, the facility’s annual hours of operation are determined by dividing the actual annual 20 electric output of the facility in megawatt-hours by the facility’s nominal electric generating 21 capacity in megawatts.” Perennial proposes to operate the Station no more than 4,400 hours 22 per year at full load, with an expected 500 startups and shutdowns each year, for a total of 23 4,736 hours.11 24

25 B. Related or Supporting Facilities 26 27

The proposed facility includes the following related or supporting facilities: 28 29 Buildings: 30 The facility would include a single pre-engineered metal building to serve as a control room and 31 administration building. This building would also house the water treatment equipment.12 32 Separate smaller buildings and enclosures are also proposed to house the chemical feed 33 equipment, turbine control and main power, distribution power, 5-kV distribution panel and 34 gas compressor motor control center, gas compressors, compressor lube oil skid, diesel fuel 35 pump, the continuous emission monitoring shed and the alternative zero liquid discharge 36 system, if this option is selected. The zero liquid discharge system is discussed in further detail 37 below. Table B-1, below, identifies the units of each building component. 38

9 ASC, Exhibit B, B-4. 10 ASC, Exhibit B, B-2. 11 ASC, Exhibit B, B-2. 12 Total area: 8,000 square feet. ASC, Exhibit B, B-6.


1 Table B-1 Building Dimensions

Component1

Number of

Units

Dimensions (L x W x H)

(feet)

Total Area

(square feet)

Administration and Water Treatment Building 1 200 x 40 x 20 8,000

ZLD Building 1 60 x 120 x 45 7,200

Chemical Feed Skid 2 30 x 40 x 10 2,400

Turbine Control & Main Power Distribution Center

2 45 x 71 x 10 6,400

5-KV Distribution Panel & Gas Compressor MCC Gas Compressor

3 7.5 x 20 x 8 450

Gas Compressor 5 8 x 17.5 x 6 700

Compressor Lube Oil Skid 5 5 x 15 x 5 375

Diesel Fire Pumps 1 10 x 15 x 5 150

CEMS 2 10 x 15 x 10 300

Key: CEMS = continuous emission monitoring shed: H = height; kV = kilovolt; L = length; MCC = motor control center W = width; ZLD = zero liquid discharge Notes:

1. Dimensions are approximate (plus or minus 1 foot). Dimensions represent one unit.

2 Figure B-3 in the ASC provides location details for each proposed building. 3 4 Fencing and Roads 5 The applicant proposes to access the Station from Westland Road via Interstate Highway 82 or 6 84. A paved loop road approximately 24 feet wide and 3,000 feet long is proposed for normal 7 truck and operator vehicle traffic, with connection to Westland Road. An entrance bridge would 8 be constructed to cross the irrigation canal at the entrance to the Station. 13 9 10 A spur road off the loop road is also proposed to allow for access to structures and equipment. 11 A paved road, 20 feet wide and 232 feet long, would also be constructed through the center of 12 the four CTGs so that each turbine could be accessed from the paved loop. No temporary 13 access roads are proposed for the project.14 14 15 To service and access the 550-kV step-up substation, the applicant proposes to use an existing 16 dirt road, branching off from the road parallel to Brownell Ditch. To utilize this road, the only 17

13 ASC, Exhibit B, B-8. 14 ASC, Exhibit B, B-8.


improvement necessary is the addition of gravel to the road surface.15 Table B-2 in the ASC 1 provides a summary of the proposed gravel uses, including the dimensions and square 2 yardage.16 3 4 A chain-link fence with three strands of barbed wire would surround the Station. The on-site 5 switchyard would be surrounded by its own chain-link fence to separate the high-voltage 6 switchyard from the rest of the Station.17 Additionally, the 550-kV step-up substation would be 7 surrounded by a security fence. 8 9 Stormwater Detention Basin 10 One stormwater detention basin, approximately 0.9 acres in size, would be located within the 11 20-acre Station fence. The basin would have a water storage depth of approximately 11 feet 12 and would be sized to contain a 100-year, 24-hour rainfall with 50 percent extra capacity. 13 Stormwater collected in the basin would infiltrate into the ground under the basin through 14 gravity and natural drainage.18 15 16 Natural Gas Pipeline 17 A natural gas pipeline lateral is proposed to provide fuel for the Station. The lateral, to be 18 owned and operated by Cascade Natural Gas Corporation (CNG), would bring natural gas to the 19 energy facility site from an existing pipeline owned by Gas Transmission Northwest (GTN). The 20 natural gas pipeline lateral would tap the GTN pipeline approximately 4.63 miles south of the 21 energy facility site, at an existing metering station, and would be approximately 12 to 18 inches 22 in diameter.19 The lateral would be located underground within an already established 50-foot-23 wide right of way associated with the Hermiston Generating Plant (HGP) gas pipeline.20

, 21 24

25

15 ASC, Exhibit B, B-16. 16 ASC, Exhibit B, B-8. 17 ASC, Exhibit B, B-16. 18 ASC, Exhibit B, B-9. 19 ASC, Exhibit B, B-14. 20 ASC, Exhibit B, B-14. 21 The department received oral testimony during the public hearing on May 14, 2015, regarding the

location of the proposed natural gas pipeline. The commenter requested that the proposed natural gas pipeline “stay within the existing easement” and away from a feedlot located on the commenter’s property. The commenter’s property was not further identified nor the location of the feedlot within the property. The proposed natural gas pipeline would be located underground within an existing 50 foot wide right of way as detailed on Figures C-7, C-8 and C-9 of the ASC. Pursuant to ORS 469.300(26), a “site certificate” is a binding agreement between the State of Oregon and the applicant, authorizing the applicant to construct and operate a facility on an approved site. Further, pursuant to mandatory conditions A.3 and A.4, the certificate holder must submit to the department the legal description of the facility and construct the facility as substantially described in the ASC. Accordingly, based upon the mandatory conditions and the binding terms of the site certificate, the Council does not make any revisions or require additional conditions. PERAPPDoc33.


The natural gas pipeline does not qualify as an “energy facility” itself because is it not five miles 1 in length as required under ORS 469.300(11)(E)(i); therefore, a corridor selection assessment is 2 not necessary for the natural gas pipeline. 3 4 Transmission Line 5 The applicant proposes to utilize primarily the existing transmission structures for the project. 6 The existing transmission structures currently support two distinct circuits: 1) the HGP’s 230-kV 7 circuit to BPA McNary on one side; and 2) Umatilla Electric Cooperative’s (UEC) 115-kV line on 8 the other. The applicant would replace UEC’s 115-kV line on the existing structures with a new 9 230-kV single circuit transmission line. The initial tie-in to the existing line would occur at the 10 northwest corner of the energy facility site.22 From the northwest corner, the line would cross 11 Westland Road to a new pole on the western side of Westland Road. This pole would connect 12 to the existing structures of the Hermiston to McNary line. As stated in the ASC, the first 13 connecting pole of the existing line may need to be replaced as well. From the onsite 14 switchyard in the southwest corner of the energy facility site, the applicant anticipates that the 15 installation of four new towers or poles would be required to reach the site’s northwestern 16 corner boundary.23 If the first existing pole must be replaced, a total of six new poles would be 17 required for the project. If the existing pole does not need to be replaced, a total of five new 18 poles would be required.24 19 20 Umatilla Electric Cooperative has existing right of ways for the western side of Westland Road. 21 If two new poles are required on the west side of Westland Road (i.e. if the existing pole 22 requires replacement in addition to the proposed new pole), the applicant estimates that about 23 0.46 acres of land would be temporarily disturbed during this installation. A new right of way 24 (ROW) is also expected to be necessary across Westland Road to connect the new transmission 25 line from the northwest corner of the Station to the first proposed new pole on the west side of 26 Westland Road. The first new connecting pole would be 215 feet from the boundary at the 27 northwest corner of the Station.25 The new ROW would, therefore, be 215 feet long and 100 28 feet wide. However, any ground disturbance associated with the installation of the new pole 29 and potential replacement pole would occur within the boundary of the Energy Facility Site or 30 in the existing ROW. Any disturbances associated with the four new poles proposed to be 31 located within the energy facility site are considered permanent impacts and considered in the 32 disturbance areas for the site as a whole (see ASC Exhibit C, Table C-1).26 33 34 From the tie-in, the new 230-kV line would extend approximately 11.59 miles, using the existing 35 infrastructure, before terminating at the 500-kV step-up substation. No new poles were 36 proposed for this portion of the line. To replace the 115-kV line with the proposed 230-kV line, 37

22 ASC, Exhibit B, B-15. 23 ASC, Exhibit B, B-15. 24 ASC, Exhibit B, B-15. 25 ASC, Exhibit B, B-15. 26 ASC, Exhibit B, B-15.


pulling stations would be required approximately every 3 miles and at turns, pulling and 1 tightening the wires of the transmission lines. The equipment would not extend beyond the 2 boundary of the existing transmission line ROW.27 3 4 The proposed transmission line does not qualify as an “energy facility” itself because ORS 5 469.300(1)(a)(C) excludes from the energy facility definition, lines constructed entirely within 6 500 feet of an existing corridor occupied by a high voltage transmission line with a capacity of 7 230 kV or more. The applicant proposes to utilize the existing infrastructure, which currently 8 includes a line with a capacity of 230-kV, by upgrading the current 115-kV side of the towers to 9 230-kV. Therefore, a corridor selection assessment is not necessary for this transmission line. 10 11 500-kV Step-Up Substation 12 In order to tie in to the open bay at the McNary Substation, the voltage of the transmission line 13 must be stepped up from 230kV to 500kV. Therefore, the applicant proposes to locate a 500-kV 14 step-up substation south of the BPA McNary Substation. The 500-kV transformer yard would 15 be open-air, of alternating current, and constructed on a leveled and graveled area, 16 approximately 3 acres in size and surrounded by a security fence. 17 18 Additionally, an underground cable would be required to connect the 500-kV step-up 19 substation to the McNary Substation tie-in location. The underground cable is proposed to be 20 477 feet long and installed in a concrete-encased duct bank approximately 2 feet wide by 2 feet 21 high, with 3 feet of cover. A fenced termination structure (riser) occupying about 0.51 acres 22 would also be constructed to connect the underground line to the aboveground McNary lines. 23 The riser termination structure would bring the underground cable into the McNary 24 Substation.28 25 26 Interconnecting Water Pipelines 27 The applicant proposes to use the Port of Umatilla as the source of all non-potable water 28 required to meet the Station’s needs. The applicant proposes to install a pipe to connect the 29 Station to the existing Port of Umatilla water, which would be constructed below grade with a 30 trench under the railroad tracks. The new pipeline is estimated to be approximately 208 feet 31 long and 12-14 inches in diameter. 32 33 Cooling tower blowdown from the Station would be reclaimed and sent to the cooling tower 34 basin of the HGP for reuse as circulating water for the HGP. An additional wastewater pipeline 35 would be constructed from the Station to the HGP to reclaim this blowdown. The pipeline 36 would be approximately 538 feet, below grade and 10 to 12 inches in diameter. As discussed 37

27 ASC, Exhibit B, B-15. The applicant proposes to work with the HGP to ensure that there would be no

interruptions of service to the plant during recondutoring activities. 28 ASC, Exhibit B, B-16.


below, if the Station is unable to send cooling tower blowdown to HGP, the applicant proposes 1 to install a zero liquid discharge system.29 2 3 Zero Liquid Discharge System (Alternative Scenario) 4 As explained in the ASC, Lamb Weston’s Water Pollution Control Facilities permit allows Lamb 5 Weston’s facility to manage and dispose of the HGP’s wastewater by land application for 6 beneficial use on the North Farm and Madison Farm in accordance with the Operations, 7 Monitoring and Management Plan approved by the Oregon Department of Environmental 8 Quality (DEQ). Lamb Weston’s permit is currently under review by DEQ and, because it is under 9 review, Lamb Weston has not been able to consent to the applicant sending reclaimed water to 10 the HGP as proposed above.30 If Lamb Weston is not able to accept reclaimed water from the 11 HGP that has come from the Station, the applicant proposes to install a Zero Liquid Discharge 12 (ZLD) system.31 13 14 As described in the ASC, the ZLD system would consist of a clarifier, a high efficiency reverse 15 osmosis (HERO) system and a crystallizer. In this system, cooling tower blowdown and 16 miscellaneous plant wastewaters would first be routed to the clarifier to remove suspended 17 solids. The clarifier effluent would then enter the HERO system. Reject water from the HERO 18 system would be sent to the crystalizer for complete crystallization and precipitation of solids. 19 An electric boiler would be used to generate low pressure steam for the crystallization 20 process.32 The system would be sized to approximately 140 gallons per minute (gpm) of 21 blowdown from the cooling tower and miscellaneous plant wastewaters. A 200,000 gallon tank 22 is also proposed to handle any potential fluctuations in the operation of the ZLD system. 23 Effluent from the ZLD system could be returned to the cooling tower basin as makeup water, 24 and the solids would be transported offsite as waste. The applicant estimates that 16,830 25 pounds per day of solids would be produced and transported offsite at a frequency of one truck 26 load per day.33 With a ZLD system, the electrical output would be approximately 411.9 27 megawatts, with the actual output dependent upon the technology selected, as opposed to the 28 proposed 415 megawatts. The applicant attributes the decrease entirely to the ZLD system.34 29 30 Utility Lines 31 The applicant proposes to add two new telecommunication lines to connect the Station 32 telephone and data system into the nearby City of Hermiston system. Both lines would be 33 located in a utility corridor. The specific details on placement location are depicted in the ASC at 34 Exhibit B, Figure B-3. 35 36

29 ASC, Exhibit B, B-16. 30 ASC, Exhibit B, B-17. 31 ASC, Exhibit B, B-17. 32 ASC, Exhibit B, B-17. 33 ASC, Exhibit B, B-17. 34 ASC, Exhibit Y, Appendix Y-1.


Temporary Construction Facilities 1 An additional area adjacent to the Station is proposed for five construction offices, construction 2 parking, construction laydown and temporary storage of soil displaced during construction. The 3 temporary construction area totals approximately 5.11 acres and is located to the southwest of 4 the Station. The specific location is depicted in the ASC at Exhibit B, Figure B-2. 5 6 III. PROCEDURAL HISTORY 7 8 III.A. Notice of Intent 9 10 On May 14, 2012, the applicant submitted to the department a Notice of Intent (NOI) to file an 11 application for a site certificate (ASC). In anticipation of the NOI, on May 11, 2012 the Council 12 appointed the Umatilla County Board of Commissioners and the Morrow County Court as 13 Special Advisory Groups (SAG), in accordance with ORS 469.480(1).35 On June 12, 2012 the 14 department issued public notice of the NOI to the Council’s general mailing list and to adjacent 15 property owners as defined at OAR 340-020-0011(1)(f). Further, in accordance with OAR 345-16 020-0040, the NOI was distributed to the SAGs and reviewing agencies, along with a 17 memorandum to reviewing agencies requesting comment on the NOI. The department also 18 published notice of the NOI on June 12, 2012 in the East Oregonian, a newspaper of general 19 circulation in the area of the facility. The public notice and newspaper notice contained an 20 announcement of a public information meeting, which the department held department on 21 June 25, 2012 in Hermiston, Oregon. The NOI comment deadline was July 2, 2012. Pursuant to 22 OAR 345-015-0140, the department provided the applicant with copies of each public comment 23 for consideration in the development of the ASC. 24 25 On September 4, 2012 the applicant submitted an amended NOI to the department. The 26 amended NOI altered the proposed transmission line routes and removed the previously 27 proposed open-air switchyard. On September 19, 2012, the department issued public notice of 28 the amended NOI to the Council’s general mailing list and to adjacent property owners. The 29 department published the notice in the East Oregonian and Heppner Gazette-Times on 30 September 19, 2012. Additionally, the amended NOI was distributed to the Special Advisory 31 Groups and reviewing agencies. The comment deadline on the amended NOI was October 19, 32 2012. A copy of each comment was provided to the applicant for review and consideration. 33 34 Pursuant to ORS 469.330(3) and OAR 345-015-0160(1) and (3), the department issued a project 35 order on February 6, 2013, which specified the state statutes, administrative rules, and local, 36 state, and tribal permitting requirements applicable to the construction and operation of the 37 facility. 38 39

35 Order Appointing Special Advisory Groups, May 11, 2012. Under ORS 469.480(1), the Council must

designate as a Special Advisory Group the governing body of any local government within whose jurisdiction the facility is proposed to be located.


Subsequently, on August 13, 2013, the applicant submitted a second amended NOI to the 1 department. The second amended NOI again altered the proposed transmission line route. On 2 August 23, 2013, the department issued public notice of the second amended NOI to the 3 Council’s general mailing list and to the adjacent property owners. The department published 4 notice in the East Oregonian on August 23, 2013. The second amended NOI was also 5 distributed to the SAGs and reviewing agencies. The comment deadline for the second 6 amended NOI was September 23, 2013. At close of the comment period, a copy of each 7 comment received was provided to the applicant. 8 9 As noted above, within the second amended NOI, the facility was no longer proposed to be 10 located in Morrow County, and was instead proposed to be located within the City of Umatilla 11 because of the amended proposal to use the existing transmission line infrastructure, which is 12 located within the city limits. On May 3, 2013, the Council appointed the Umatilla City Council 13 as another SAG for the proposed facility.36 14 15 Pursuant to ORS 469.330(3) and OAR 345-015-0160(1) and (3), the department issued an 16 amended project order on September 30, 2013. 17 18 III.B. Application for Site Certificate 19 20 The department received the preliminary Application for Site Certificate (pASC) on April 3, 21 2014. The department distributed the pASC to reviewing agencies and requested comments on 22 the pASC no later than May 5, 2014. Additionally, the department posted an announcement on 23 the department’s website, notifying the public that the pASC had been submitted. 24 25 Pursuant to OAR 345-015-0190(1), on May 30, 2014, the department determined the 26 application to be incomplete and issued a Request for Additional Information (RAI-1). In 27 accordance with the deadline provided by the department with its RAI-1, the applicant 28 provided responses and revised exhibits on July 31, 2014. After reviewing the revised exhibits, 29 the department determined the application to be complete on October 9, 2014 and the 30 applicant filed a complete ASC on October 17, 2014. Under OAR 345-015-0190(5), an 31 application is complete when the department finds that the applicant has submitted 32 information adequate for the Council to make findings or impose conditions on all applicable 33 Council standards. 34 35 Public notice of the ASC was issued on October 25, 2014, with notice posted in the East 36 Oregonian on that same day. The department held a public information meeting on the ASC on 37 November 19, 2014 in Umatilla County, Oregon. Substantive issues raised during the public 38 information meeting related to a Council standard are addressed under the applicable Council 39

36 Order Appointing the City Council of the City of Umatilla as a Special Advisory Group, May 03, 2013.


standard of this final order. Matters raised but not within the jurisdiction of the Council or not 1 related to a Council standard are not further addressed in this final order. 2 Pursuant to OAR 345-015-0200, the department distributed copies of the complete ASC to the 3 reviewing agencies, along with a request for agency reports on the complete ASC no later than 4 November 24, 2014. The department received comments from four reviewing agencies, 5 including the Umatilla County Board of County Commissioners. 6 7 On November 21, 2014, the Council appointed David Petersen as the hearing officer to conduct 8 the public hearing on the ASC and to conduct the contested case proceeding.37 9 10 III.C. Council Review Process 11 12 On April 14, 2015, the department issued the Draft Proposed Order (DPO) for public comment 13 and a Notice of Public Hearing.38 On May 14, 2015, Hearing Officer Petersen conducted the 14 public hearing on the DPO in Hermiston, Oregon.39 The record of the public hearing closed on 15 May 14, 2015 at the conclusion of the public hearing, as provided in the public notice. The 16 Council reviewed the DPO and comments received on the record of the public hearing at its 17 regularly scheduled Council meeting on May 15, 2015. 18 19 The department received a total of six comments on the record of the public hearing, including 20 those received during the May 14 public hearing. Appendix F of this final order includes an 21 index of comments on the DPO. Substantive issues raised in the comments on the DPO are 22 discussed under the applicable standard(s) in Section IV of this final order. 23 24 The department prepared the Proposed Order, taking into consideration the comments of the 25 Council, comments received on the record of the public hearing ( i.e. oral testimony provided at 26 the public hearing and written comments received before the close of the public hearing), and 27 agency consultation. Concurrent with the issuance of the Proposed Order, the department 28 issued a Notice of Contested Case and a Public Notice of the Proposed Order.40 Only those 29 persons who commented in person or in writing on the record of the public hearing could 30 request to participate as a party or limited party in the contested case proceeding. Additionally, 31 to have raised an issue in a contested case, the issue must have been within Council 32 jurisdiction, and the person must have raised the issue on the record of the public hearing with 33 “sufficient specificity to afford the Council, the department, and the applicant an adequate 34 opportunity to respond.”41 The deadline for requesting party status in the contested case was 35 5:00 pm on July 14, 2015. The date of the initial prehearing conference was scheduled for 36

37 Order Appointing Hearing Officer, November 21, 2014. 38 PERAPPDoc31. Draft Proposed Order in the Matter of the Application for Site Certificate for the

Perennial Wind Chaser Station. 39 Council members Beyeler, Jenkins, Dowlin, Senn, and Billings attended the hearing in person. 40 See ORS 469.370(4) and OAR 345-015-0014 41 ORS 469.370(3).


August 3, 2015 at 2:00pm. The Notice of Contested Case was sent via certified mail to all 1 persons who commented on the Draft Proposed Order. No requests for party status were 2 received by the July 14 deadline. On July 21, 2015 the Hearing Officer issued an Order 3 Concluding the Contested Case in the Matter of the Application for Site Certificate for the 4 Perennial Wind Chaser Station. 5 6 The Council considered the department’s proposed order at a public meeting in Boardman, 7 Oregon, on September 18, 2015 and issued this final order. 8 9 This final order approves the ASC for the proposed Perennial Wind Chaser Station based upon 10 the Council standards adopted pursuant to ORS 469.501, and any additional state statutes, 11 rules, or local government ordinances determined to be applicable to the proposed facility in 12 the project rrder.42 Pursuant to ORS 469.403, parties to the contested case proceeding may 13 appeal the Council’s decision to the Oregon Supreme Court. Because there were no parties to 14 the contested case, no party has standing to appeal this final order. . 15 16 IV. EVALUATION OF COUNCIL STANDARDS 17 18 As discussed above, ORS 469.320 requires a site certificate from the Energy Facility Siting 19 Council (Council) before construction of a “facility.” ORS 469.300(14) defines “facility” as an 20 “energy facility together with any related or supporting facilities.” The proposed Perennial 21 Wind Chaser Station qualifies as an “energy facility” under the definition in ORS 469.300(11)(a). 22 23 To issue a site certificate for a facility, the Council must determine that “the facility complies 24 with the applicable standards adopted by the Council pursuant to ORS 469.501 or the overall 25 public benefits of the facility outweigh any adverse effects on a resource or interest protected 26 by the applicable standards that the facility does not meet.”43 The Council must also decide 27 whether the proposed facility complies with all other applicable Oregon statutes and 28 administrative rules, as identified in the project order, which excludes requirements governing 29 design or operational issues that do not relate to siting44 and compliance with requirements of 30 federally-delegated programs.45 Nevertheless, the Council may consider these programs in the 31 context of its own standards to ensure public health and safety and protection of the 32 environment.46 33

42 ORS 469.370(7). 43 ORS 469.503(1). 44 Such matters include design-specific construction or operation standards and practices that do not

relate to siting, as well as matters relating to employee health and safety, building code compliance, wage and hour or other labor regulations, or local government fees and charges

45 ORS 469.401(4); ORS 469.503(3). 46The Council does not have jurisdiction over matters that are not included in and governed by the site

certificate or amended site certificate. However, the Council may rely on the determinations of compliance and the conditions in the permits issued by these state agencies and local governments in deciding whether the facility meets other standards and requirements under its jurisdiction.


1 Under ORS 469.310, the Council is charged with ensuring that the “siting, construction and 2 operation of energy facilities shall be accomplished in a manner consistent with protection of 3 the public health and safety.” ORS 469.401(2) further provides that the Council must include in 4 the site certificate “conditions for the protection of the public health and safety,” for the time 5 for completion of construction, and to ensure compliance with the standards, statutes and rules 6 described in ORS 469.501 and ORS 469.503.”47 The Council implements this statutory 7 framework and ensures the protection of public health and safety by adopting findings of fact, 8 conclusions of law, and conditions of approval concerning the proposed facility’s compliance 9 with the Council’s Standards for Siting Facilities at OAR 345, Divisions 22, 24, 26, and 27. 10 11 This final order includes the Council’s findings of the proposed facility’s compliance with each 12 applicable Council Standard (subject to mitigation and compliance with the conditions, as 13 applicable), based on the information in the ASC, the department’s draft proposed order and 14 proposed order, and the comments submitted on the record. 15 16 IV.A. General Standard of Review [OAR 345-022-0000] 17 18

(1) To issue a site certificate for a proposed facility or to amend a site certificate, the 19 Council shall determine that the preponderance of evidence on the record supports the 20 following conclusions: 21

22 (a) The facility complies with the requirements of the Oregon Energy Facility Siting 23 statutes, ORS 469.300 to ORS 469.570 and 469.590 to 469.619, and the standards 24 adopted by the Council pursuant to ORS 469.501 or the overall public benefits of the 25 facility outweigh any adverse effects on a resource or interest protected by the 26 applicable standards the facility does not meet as described in section (2); 27

28 (b) Except as provided in OAR 345-022-0030 for land use compliance and except for 29 those statutes and rules for which the decision on compliance has been delegated by 30 the federal government to a state agency other than the Council, the facility 31 complies with all other Oregon statutes and administrative rules identified in the 32 project order, as amended, as applicable to the issuance of a site certificate for the 33 proposed facility. If the Council finds that applicable Oregon statutes and rules, other 34 than those involving federally delegated programs, would impose conflicting 35 requirements, the Council shall resolve the conflict consistent with the public interest. 36 In resolving the conflict, the Council cannot waive any applicable state statute. 37 * * * 38

39

47 ORS 469.401(2).


(4) In making determinations regarding compliance with statutes, rules and ordinances 1 normally administered by other agencies or compliance with requirement of the Council 2 statutes if other agencies have special expertise, the Department of Energy shall consult 3 such other agencies during the notice of intent, site certificate application and site 4 certificate amendment processes. Nothing in these rules is intended to interfere with the 5 state’s implementation of programs delegated to it by the federal government. 6 7

IV.A.1. General Standard of Review 8 9 OAR 345-022-0000 provides the Council’s General Standard of Review and requires the Council 10 to find that a preponderance of evidence on the record supports the conclusion that the facility 11 complies with the requirements of the Oregon Energy Facility Siting statutes and the siting 12 standards adopted by the Council and that the facility complies with all other Oregon Statues 13 and administrative rules identified in the project order, as amended, and as applicable to the 14 issuance of a site certificate for the proposed facility. 48 15 16 As discussed above, as staff to the Council, the department consulted with other agencies 17 during the NOI and ASC processes to aid in the evaluation of the proposed facility’s compliance 18 with statutes, rules and ordinances otherwise administered by other agencies. Additionally, the 19 department relied upon the reviewing agencies’ expertise in evaluating the facility’s compliance 20 with the requirements of the Council’s standards, public comments on the DPO, and the 21 Council’s review and comments on the record of the DPO. 22 23

A. Certificate Expiration [OAR 345-027-0000] 24 25 Under OAR 345-015-0085(9), the site certificate is effective upon execution by the Council Chair 26 and the applicant. ORS 469.370(12) requires the Council to “specify in the site certificate the 27 date by which construction of the facility must begin.” ORS 469.401(2) requires that the site 28 certificate contain a condition “for the time for completion of construction.” Under OAR 345-29 027-0000, the certificate holder must begin construction on the facility no later than the 30 construction beginning date specified by Council in the site certificate. “Construction” is defined 31 in ORS 469.300(6) to mean “work performed on a site, excluding surveying, exploration or other 32 activities to define or characterize the site, the cost of which exceeds $250,000.” OAR 345-010-33 0010(12) adopts the statutory definition. 34 35 The total construction time for the Station is expected to be 22 months, from mobilization to 36 commencement of commercial operation. As explained in the ASC, the first two months of 37

48When the applicant has shown that the proposed facility cannot meet Council standards or has shown that there is no reasonable way to meet the Council standards through mitigation or avoidance of any adverse effects on a protected resource or interest OAR 345-022-0000(2) and (3) establish criteria the Council may use to make a balancing determination. The applicant does not assert that the proposed facility cannot meet an applicable Council standard. Therefore, OAR 345-022-0000(2) and (3) do not apply to this review.


construction would include site preparation and grading work, with the next 16 months 1 consisting of the majority of the impact from construction activities, such as traffic, noise, and 2 demand for public services from nearby communities. 3 4 The Council’s findings on whether a proposed facility can meet any given Council standard must 5 necessarily be based upon its findings of facts and conclusions of law at the time of the site 6 certificate decision. Local and state regulations applicable to a facility, and the situation within 7 the analysis area for the facility, can and will change over time. The chance of a change in a law 8 or circumstance within the analysis area increases the further the construction date is set from 9 the date the site certificate is issued. 10 11 Therefore, to allow the applicant sufficient time to complete construction while also minimizing 12 the potential for changes that could affect a Council finding, the Council approves a three year 13 deadline for the applicant to begin construction, and three years for the applicant to complete 14 construction. In compliance with OAR 345-027-0000 and OAR 345-027-0020(4), the Council 15 adopts the following conditions: 16 17

Condition A.1: The certificate holder shall begin construction of the facility within three 18 years after the effective date of the site certificate. Under OAR 345-015-0085(9), the site 19 certificate is effective upon execution by the Council chair and the applicant. 20 21 Condition A.2: The certificate holder shall complete construction of the facility within six 22 years after the effective date of the site certificate. 23

24 B. Mandatory Conditions in Site Certificates [OAR 345-027-0020] 25

26 OAR 345-027-0020 lists certain conditions that the Council must adopt in every site certificate. 27 Some mandatory conditions directly implement a Council standard and are therefore applied in 28 this final order within the discussion of the relevant standard. In addition, OAR 345-027-29 0020(10) requires that the Council include as conditions in the site certificate all 30 representations in the ASC and supporting record the Council deems to be binding 31 commitments made by the applicant. Those conditions are also applied within the discussion of 32 the relevant standard. Mandatory conditions that are not otherwise addressed in the 33 evaluation of compliance with specific standards are listed below. As stated in OAR 345-027-34 0020(1), “the Council shall not change the conditions of the site certificate except as provided 35 for in OAR Chapter 345, Division 27.” 36 37 The following are mandatory conditions required pursuant to OAR 345-027-0020. 38

39 Condition A.3 [OAR 345-027-0020(2)]: The certificate holder shall submit a legal description 40 of the site to the Oregon Department of Energy within 90 days after beginning operation of 41 the facility. The legal description required by this rule means a description of metes and 42


bounds or a description of the site by reference to a map and geographic data that clearly 1 and specifically identify the outer boundaries that contain all parts of the facility. 2 3 Condition A.4 [OAR 345-027-0020(3)]: The certificate holder shall design, construct, 4 operate, and retire the facility: 5 6

(a) Substantially as described in the site certificate; 7 8 (b) In compliance with the requirements of ORS Chapter 469, applicable Council rules, 9 and applicable state and local laws, rules and ordinances in effect at the time the site 10 certificate is issued; and 11 12 (c) In compliance with all applicable permit requirements of other state agencies. 13

14 Condition A.5 [OAR 345-027-0020(4)]: The certificate holder shall begin and complete 15 construction of the facility by the dates specified in the site certificate. 16

17 Condition A.6 [OAR 345-027-0020(5)]: Except as necessary for the initial survey or as 18 otherwise allowed for wind energy facilities, transmission lines or pipelines under this 19 section, the certificate holder shall not begin construction, as defined in OAR 345-001-0010, 20 or create a clearing on any part of the site until the certificate holder has construction rights 21 on all parts of the site. For the purpose of this rule, “construction rights” means the legal 22 right to engage in construction activities. For wind energy facilities, transmission lines or 23 pipelines, if the certificate holder does not have construction rights on all parts of the site, 24 the certificate holder may nevertheless begin construction, as defined in OAR 345-001-25 0010, or create a clearing on a part of the site if the certificate holder has construction 26 rights on that part of the site and the certificate holder would construct and operate part of 27 the facility on that part of the site even if a change in the planned route of a transmission 28 line or pipeline occurs during the certificate holder’s negotiations to acquire construction 29 rights on another part of the site. 30 31 Condition A.7 [OAR 345-027-0020(6)]: If the certificate holder becomes aware of a 32 significant environmental change or impact attributable to the facility, the certificate holder 33 shall, as soon as possible, submit a written report to the department describing the impact 34 on the facility and any affected site certificate conditions. 35 36 Condition A.8 [OAR 345-027-0020(11)]: Upon completion of construction, the certificate 37 holder shall restore vegetation to the extent practicable and shall landscape all areas 38 disturbed by construction in a manner compatible with the surroundings and proposed use. 39 Upon completion of construction, the certificate holder shall remove all temporary 40 structures not required for facility operation and dispose of all timber, brush, refuse and 41


flammable or combustible material resulting from clearing of land and construction of the 1 facility. 2

3 Condition A.9 [OAR 345-027-0020(15)]: Before any transfer of ownership of the facility or 4 ownership of the site certificate holder, the certificate holder shall inform the department 5 of the proposed new owners. The requirements of OAR 345-027-0100 apply to any transfer 6 of ownership that requires a transfer of the site certificate. 7 8 C. Site Specific Conditions [OAR 345-027-0023] 9

10 In addition to mandatory conditions imposed on all facilities, the Council rules also include “site 11 specific” conditions at OAR 345-027-0023 that the Council may include in the site certificate to 12 address issues specific to certain facility types or proposed features of facilities. 13 14 Because the facility includes a lateral natural gas pipeline as a related and supporting facility, 15 the Council adopts the following site specific conditions. 16 17

Condition A.10 [OAR 345-027-0023(2)]: The certificate holder shall submit to the 18 department copies of all incident reports involving the lateral natural gas pipeline required 19 under 49 CFR § 191.15. 20

21 Condition A.11 [OAR 345-027-0023(3)]: 22

23 (a) The certificate holder shall design, construct and operate the lateral natural gas 24 pipeline in accordance with the requirements of the U.S. Department of Transportation 25 as set forth in Title 49 Code of Federal Regulations, Part 192, in effect as of the date of 26 this rule; and 27 28 (b) The certificate holder shall develop and implement a program using the best 29 available practicable technology to monitor the proposed lateral natural gas pipeline to 30 ensure protection of public health and safety. 31 32

D. Construction and Operation Rules for Facilities [OAR Chapter 345, Division 26] 33 34 The Council has also adopted rules at OAR Chapter 345, Division 26 to ensure that construction, 35 operation, and retirement of facilities are accomplished in a manner consistent with the 36 protection of the public health, safety, and welfare and protection of the environment. These 37 rules include requirements for compliance plans, inspections, reporting and notification of 38 incidents. The certificate holder must construct, operate, and retire the facility in accordance 39 with all applicable rules adopted by the Council in OAR Chapter 345, Division 26. 40 41

IV.A.2. General Standard of Review: Conclusions of Law 42


1 Based on the foregoing findings and conclusions, and subject to compliance with the site 2 certificate conditions, the Council finds that the facility satisfies the General Standard of 3 Review. 4 5 IV.B. Organizational Expertise [OAR 345-022-0010] 6 7

(1) To issue a site certificate, the Council must find that the applicant has the 8 organizational expertise to construct, operate and retire the proposed facility in 9 compliance with Council standards and conditions of the site certificate. To conclude that 10 the applicant has this expertise, the Council must find that the applicant has 11 demonstrated the ability to design, construct and operate the proposed facility in 12 compliance with site certificate conditions and in a manner that protects public health 13 and safety and has demonstrated the ability to restore the site to a useful, non-14 hazardous condition. The Council may consider the applicant’s experience, the 15 applicant’s access to technical expertise and the applicant’s past performance in 16 constructing, operating and retiring other facilities, including, but not limited to, the 17 number and severity of regulatory citations issued to the applicant. 18 19 (2) The Council may base its findings under section (1) on a rebuttable presumption that 20 an applicant has organizational, managerial and technical expertise, if the applicant has 21 an ISO 9000 or ISO 14000 certified program and proposes to design, construct and 22 operate the facility according to that program. 23 24 (3) If the applicant does not itself obtain a state or local government permit or approval 25 for which the Council would ordinarily determine compliance but instead relies on a 26 permit or approval issued to a third party, the Council, to issue a site certificate, must 27 find that the third party has, or has a reasonable likelihood of obtaining, the necessary 28 permit or approval, and that the applicant has, or has a reasonable likelihood of entering 29 into, a contractual or other arrangement with the third party for access to the resource 30 or service secured by that permit or approval. 31 32 (4) If the applicant relies on a permit or approval issued to a third party and the third 33 party does not have the necessary permit or approval at the time the Council issues the 34 site certificate, the Council may issue the site certificate subject to the condition that the 35 certificate holder shall not commence construction or operation as appropriate until the 36 third party has obtained the necessary permit or approval and the applicant has a 37 contract or other arrangement for access to the resource or service secured by that 38 permit or approval. 39

40 IV.B.1. Organizational Expertise: Findings of Fact 41

42


To demonstrate compliance with the Council’s Organizational Expertise Standard, the applicant 1 provided evidence in the following exhibits: Exhibit A, Application Information; Exhibit D, 2 Applicant’s Organization, Managerial, and Technical Expertise; Exhibit E, Permits Needed for 3 Construction and Operation; Exhibit M, Financial Analysis; and Exhibit W, Site Restoration. 4

5 A. Organizational Expertise to Construct, Operate and Retire the Proposed Facility 6

7 The applicant, Perennial-WindChaser LLC, is a wholly owned subsidiary of Perennial Power 8 Holdings, Inc. Perennial Power Holdings, Inc. is a wholly owned subsidiary of Sumitomo 9 Corporation and Sumitomo Corporation of America. Sumitomo Corporation of America owns 10 49.99% of Perennial Power Holdings, Inc. (PPH) and Sumitomo Corporation owns 50.01%. These 11 companies currently have a power portfolio of approximately 6,306 megawatts of electrical 12 generation, including thermal generation, hydroelectric, wind, and solar energy across 17 13 nations on five continents.49 14 15 As evidenced from the current power portfolio, Perennial’s parent companies have significant 16 national and international experience. However, to demonstrate the parent companies’ most 17 relevant experience, Perennial relied upon a local facility to demonstrate past performance and 18 the applicant’s ability to operate the facility. PPH, Perennial’s parent company, currently 19 operates the Hermiston Generating Plant (HGP) in Umatilla County, Oregon through a 20 subsidiary. As explained in the ASC, PPH was not involved in the construction of the facility, as 21 the facility was constructed prior to PPH’s acquisition. However, PPH now has over 11 years’ 22 experience staffing and operating the plant, which operates under a site certificate issued by 23 EFSC. As explained in the ASC, the HGP has no outstanding regulatory issues with regard to 24 environmental or occupational safety and health standards and maintains excellent relations 25 with local residents.50 26 27 While Perennial does not have direct experience with personnel for construction and operation 28 of a facility, the ASC provides that the parent companies and subsidiaries do have substantial 29 experience and would provide Perennial with qualified and experienced personnel to manage 30 and supervise the design and construction of the project. As an example of the parent 31 companies’ personnel experience, the ASC highlights that PPH’s Senior Vice President-32 Operations and Development has over 15 years’ experience in the power and energy 33 infrastructure industry and assists in the operation of the HGP Plant. The applicant would not 34 use its own personnel for construction work; rather, it proposes to enter into a turnkey 35 Engineering Procurement and Construction (EPC) contract with a contractor to construct the 36 project. Perennial has retained Burns & McDonnell for the design phase of this project and, as 37 explained in the ASC, Burns & McDonnell has over 45 years of experience with gas turbine 38 generating facilities and would draft an EPC contract for Perennial that would serve as the basis 39

49 ASC, Exhibit D, D-2. 50 ASC, Exhibit D, D-3.


for negotiations with a vendor.51 Further, Perennial’s parent companies would provide a Design 1 Basis and Technical Specifications document in conjunction with the draft EPC contract.52 As 2 provided in the ASC, Perennial’s parent companies’ personnel will supervise and oversee the 3 construction process.53 4 5 The evidence in the record reflects that Perennial has the necessary experience to design and 6 construct the facility. However, to ensure that personnel and major contractors are qualified to 7 design, engineer and construct the proposed facility, and that all contractors and 8 subcontractors operate in compliance with the site certificate, the Council adopts the following 9 conditions: 10 11

Condition B.1: Before beginning construction, the certificate holder shall provide the 12 department with the identity and qualifications of the design, engineering and construction 13 contractor(s) for the facility. The certificate holder shall select contractors that have 14 substantial experience in the design, engineering and construction of similar facilities. The 15 certificate holder shall report to the department any change in contractors during the 16 design and construction of the facility. 17

18 Condition B.2: The certificate holder must notify the department before conducting any 19 work on the site that does not qualify as surveying, exploration, or other activities to define 20 or characterize the site. The notice must include a description of the work and evidence that 21 its value is less than $250,000 or evidence that the applicant has satisfied all conditions that 22 are required prior to beginning construction. 23

24 Condition B.3: The certificate holder shall contractually require all construction contractors 25 and subcontractors involved in the construction of the facility to comply with all applicable 26 laws and regulations and with the terms and conditions of the site certificate. Such 27 contractual provisions shall not relieve the certificate holder of responsibility under the site 28 certificate. 29 30 Condition B.4: Any matter of non-compliance under the site certificate is the responsibility 31 of the certificate holder. Any notice of violation issued under the site certificate shall be 32 levied on the certificate holder. 33

34 While the applicant has not previously retired a facility, the applicant states in Exhibit W that it 35 would restore the site to a useful non-hazardous condition in accordance with a retirement 36 plan approved by Council.54 Retirement of the facility is discussed further in the Retirement and 37 Financial Assurance section below. To ensure that the applicant restores the site to a useful, 38

51 ASC, Exhibit D, D-4. 52 ASC, Exhibit D, D-4. 53 ASC, Exhibit D, D-4. 54 ASC, Exhibit W, W-2.


non-hazardous condition, OAR 345-027-0020(7) requires that the Council adopt the following 1 mandatory condition: 2

3 Condition B.5 [OAR 345-027-0020(7)]: The certificate holder shall prevent the development 4 of any conditions on the site that would preclude restoration of the site to a useful, non-5 hazardous condition to the extent that prevention of such site conditions is within the 6 control of the certificate holder. 7

8 Based on the information provided by the applicant and subject to compliance with the site 9 certificate conditions, the Council finds that the applicant has the organizational expertise to 10 construct, operate and retire the facility.55 11 12

B. ISO 900 or ISO 14000 Certified Program 13 14 Subsection (b) is not applicable because the applicant does not have an ISO 9000 or ISO 14000 15 certified program. 16 17

C. Third-Party Permits 18 19 Perennial does not propose to rely on third party federal permits. However, it would rely on 20 three third party state and local permits for the construction and operation of the facility. As 21 explained in the ASC, the first third-party permit addresses water supply and the other two 22 address reclaimed water generated by the station. For the first third party permit, Perennial will 23 rely upon the Port of Umatilla’s existing water right to supply it with up to 2,000 gallons of 24 water per minute for the facility. The Port of Umatilla currently holds the existing right and no 25 change to the permit or right would be necessary, as explained in a letter provided by the Port 26 of Umatilla and included in the ASC. Therefore, based upon the information provided, because 27 the Port of Umatilla currently holds the permit and provided a letter to Perennial expressing its 28 ability to supply water to the Station, Perennial has demonstrated a reasonable likelihood of 29 entering into a contractual agreement or other arrangement with the Port for access to the 30 resource56. 31 32 For the other third party permits, Perennial proposes to send reclaimed water from the facility 33 to the HGP as makeup water for the HGP’s cooling tower. The HGP operates under an EFSC site 34 certificate. The HGP currently discharges its reclaimed water to Lamb Weston. Lamb Weston 35 uses the reclaimed water for wash down or irrigation purposes and operates under a Water 36 Pollution Control Facilities Permit. Perennial expects that the station would generate suitable 37 wastewater for re-use as makeup at the HGP because cooling water at the station would be 38

55 Additional mandatory conditions related to the retirement of the facility are discussed in Section G

below. 56 See Section IV.R, Ground Water, for additional discussion and conditions regarding the applicant’s

proposed reliance upon the Port of Umatilla’s water right.


used inside the turbine equipment, which requires higher water quality specifications than 1 cooling tower makeup water used at the HGP. Therefore, as explained in the ASC, HGP 2 anticipates no difficulty in continuing to meet the requirements of its site certificate because of 3 the anticipated high water quality to be sent from the proposed facility. However, renewal of 4 Lamb Weston’s WPCF permit is currently under review by DEQ. Because the permit is under 5 review, Lamb Weston cannot yet consent to the project sending reclaimed water to the HGP. 6 However, in the event Lamb Weston is not able to accept reclaimed water from the HGP that 7 originated from the Station, the applicant has included the scenario and related third party 8 permits in its ASC. In this instance, based upon the information provided, the third parties, 9 (Lamb Weston and HGP) already have their permits. Accordingly, subject to Lamb Weston’s 10 ability to consent to receipt of the reclaimed water, it appears that the applicant has a 11 reasonable likelihood of entering into a contractual or other arrangement with both parties for 12 access to the services. 13 14 However, to ensure all required permits are obtained prior to construction, the Council adopts 15 the following conditions: 16

17 Condition B.6: The certificate holder shall obtain all necessary federal, state and local 18 permits or approvals required for construction, operation and retirement of the facility or 19 ensure that its contractors obtain the necessary federal, state and local permits or 20 approvals. 21

22 Condition B.7: Before beginning construction, the certificate holder shall provide 23 confirmation in writing to the department that the third parties have obtained all necessary 24 permits or approvals and shall provide to the department proof of agreements between the 25 certificate holder and the third parties regarding access to the resources or services secured 26 by the permits or approvals. 27

28 Based on this analysis and the evidence in the record, and subject to compliance with the site 29 certificate conditions, the Council finds that the applicant has the organizational expertise to 30 design, construct, and operate the facility in compliance with site certificate conditions and in a 31 manner that protects public health and safety and has demonstrated the ability to restore the 32 site to a non-hazardous condition. Further, the Council finds that the applicant has a reasonable 33 likelihood of entering into a contract with third parties for access to the resources and services 34 secured by those permits. 35 36

IV.B.2. Organizational Expertise: Conclusions of Law 37 38 Based on the foregoing findings and conclusions, and subject to compliance with the site 39 certificate conditions, the Council finds that Perennial has the expertise to design, construct, 40 and operate the facility in compliance with the Council’s Organizational Expertise Standard. 41 42


IV.C. Structural Standard [OAR 345-022-0020] 1 2

(1) Except for facilities described in sections (2) and (3), to issue a site certificate, the 3 Council must find that: 4

5 (a) The applicant, through appropriate site-specific study, has adequately 6 characterized the site as to the Maximum Considered Earthquake Ground Motion as 7 shown for the site in the 2009 International Building Code and maximum probable 8 ground motion, taking into account ground failure and amplification for the site 9 specific soil profile under the maximum credible and maximum probable seismic 10 events; and 11 12 (b) The applicant can design, engineer, and construct the facility to avoid dangers to 13 human safety presented by seismic hazards affecting the site that are expected to 14 result from maximum probable ground motion events. As used in this rule "seismic 15 hazard" includes ground shaking, ground failure, landslide, liquefaction, lateral 16 spreading, tsunami inundation, fault displacement, and subsidence; 17 18 (c) The applicant, through appropriate site-specific study, has adequately 19 characterized the potential geological and soils hazards of the site and its vicinity 20 that could, in the absence of a seismic event, adversely affect, or be aggravated by, 21 the construction and operation of the proposed facility; and 22 23 (d) The applicant can design, engineer and construct the facility to avoid dangers to 24 human safety presented by the hazards identified in subsection (c). 25

26 (2) The Council may issue a site certificate for a facility that would produce power from 27 wind, solar or geothermal energy without making the findings described in section (1). 28 However, the Council may apply the requirements of section (1) to impose conditions on 29 a site certificate issued for such a facility. 30

31 (3) The Council may issue a site certificate for a special criteria facility under OAR 345-32 015-0310 without making the findings described in section (1). However, the Council may 33 apply the requirements of section (1) to impose conditions on a site certificate issued for 34 such a facility. 35

36 IV.C.1. Structural Standard: Findings of Fact 37

38 OAR 345-022-0020 requires the Council to find that the applicant has adequately characterized 39 the potential seismic, geological and soil hazards of the site, and that the applicant can design, 40 engineer and construct the facility to avoid dangers to human safety from these hazards. The 41


Council does not preempt the jurisdiction of any state or local government over matters related 1 to building code compliance. 2 3 Only the standards in OAR 345-022-0020(1)(a) through (d) apply to the proposed facility. OAR 4 345-022-0020(2) and (3) do not apply to this application because the proposed facility would 5 not produce power from wind, solar or geothermal energy and the facility is not a special 6 criteria facility as defined in OAR 345-015-0310. 7 8 As established in the project order, the analysis area for the structural standard is the area 9 within the site boundary. As provided above, the site boundary, as defined by OAR 345-001-10 0010(53), is the area within the perimeter of the proposed energy facility, its related or 11 supporting facilities, all temporary laydown and staging areas, and all micrositing corridors 12 proposed by the applicant. The applicant provided information regarding the seismic 13 characteristics of the site and possible seismic and geological hazards in Exhibit H of the ASC. 14 15

A. Characterization of Seismic Hazards: OAR 345-022-0020(1)(a) 16 17 The applicant, through appropriate site-specific study, has adequately characterized the 18 site as to the Maximum Considered Earthquake Ground Motion as shown for the site in 19 the 2009 International Building Code and maximum probable ground motion, taking into 20 account ground failure and amplification for the site specific soil profile under the 21 maximum credible and maximum probable seismic events 22

23 OAR 345-022-0020(1)(a) requires the applicant to adequately characterize the probability and 24 severity of seismic events and ground failure at the site. The applicant contracted with Shannon 25 & Wilson, Inc. to prepare a geologic report that meets the general guidelines in open file report 26 00-04 “Guidelines for Engineering Geologic Reports and Site-Specific Seismic Hazard Reports.” 27 The report summarizes Shannon & Wilson’s preliminary geotechnical investigation of the 28 facility site, which was performed in June, July and August of 2013.57 In addition, the applicant 29 provided evidence of consultation with the Oregon Department of Geology and Mineral 30 Industries (DOGAMI). As discussed in the ASC, the applicant met with DOGAMI to explain 31 preliminary site-specific geologic explorations and evaluations performed at the site as well as 32 to discuss available documentation for review.58 33 34 As provided in the ASC, the preliminary site work conducted in 2013 included the installation of 35 10 geotechnical borings, five dynamic cone penetrometer tests, and two infiltration tests at the 36 Station and the installation of two geotechnical borings, four dynamic cone penetrometer tests, 37 and two infiltration tests at the step-up substation. The preliminary geotechnical reports were 38 included in the ASC as Appendices H-1 and H-2. As recommended in the reports, the applicant 39 proposes to conduct additional geotechnical investigations in the final design phase that would 40

57 ASC, Exhibit H, H-1. 58 ASC, Exhibit H, H-3.


include field explorations, laboratory testing, and engineering studies and recommendations. 1 Further, the field explorations would include additional borings for the final locations of the 2 turbine/generators, access bridge, step-up substation, transmission towers and buried 3 transmission cable.59 In addition, a shear wave velocity measurement would be performed at 4 the Station and step-up substation site. Additional engineering evaluations on the refined 5 subsurface conditions will include: 6 7

Refining or upgrading the seismic hazard evaluations and ground motion design 8 parameters, including design response spectra. 9

• Estimating soil bearing capacity and settlement for the transformer foundation, 10 transmission tower foundation, and other geotechnical evaluations based upon the final 11 design layout and design loads. 12

• Developing geotechnical recommendations for trench excavation, shoring, and backfill 13 of the buried transmission cable, as well as trenchless excavation techniques if required. 14 Perennial has assumed that the embedment of the buried transmission cable is 15 relatively shallow and that open trench excavation is the preferred construction 16 method; however, trenchless excavation may be required to pass below existing railroad 17 tracks. 18

• Completing a final geotechnical design report for the final design and construction.60 19 20 In order to ensure completion of the additional site specific studies, the Council adopts the 21 following conditions: 22 23

Condition C. 1: Prior to beginning construction, the certificate holder shall complete 24 additional geotechnical investigations, including field explorations and laboratory testing. 25 The field explorations shall include additional borings for the final locations of the 26 turbine/generators, access bridge, step-up substation, transmission towers and the buried 27 transmission cable. Further, the site certificate holder shall perform a shear wave velocity 28 measurement at the station and step-up substation sites. 29

30 Condition C.2: Prior to beginning construction, the certificate holder shall complete the 31 following additional engineering evaluations: 32 33

(a) Refining the seismic hazard evaluations and ground motion design parameters, 34 including design response spectra; 35 (b) Estimating soil bearing capacity and settlement for the transformer foundation 36 transmission tower foundation, and other geotechnical evaluations based upon the final 37 design layout and design loads; 38

59 ASC, Exhibit H, H-1. 60 ASC, Exhibit H, H-2.


(c) Developing geotechnical recommendations for trench excavation, shoring, and 1 backfill of the buried transmission cable, as well as trenchless excavation techniques, if 2 necessary to pass below existing railroad tracks; and 3 (d) Completing a final geotechnical design report 4

5 The ASC includes a probabilistic seismic hazard analysis to identify peak ground accelerations 6 expected at the site for a 500 year recurrence interval and a 5000 year recurrence interval in 7 the ASC. The applicant relied on a probabilistic seismic hazard analysis developed by the USGS 8 to estimate peak ground accelerations expected at the site.61 As explained in the ASC, new 9 construction that is designed according to the 2009 International Building Code (as required 10 under Council rules), should be designed based upon the Maximum Considered Earthquake. 11 The applicant provided the recommended seismic design parameters for the Maximum 12 Considered Earthquake for each facility site in Table H-2 of the application.62 13 14 Under OAR 345-021-0010(1)(h)(F)(ii), the Council requires applicants to identify earthquake 15 sources capable of generating median peak ground accelerations (PGA) greater than 0.5g on 16 rock at the site and the applicant must assess the magnitude and minimum epicentral distance 17 of the maximum credible earthquake. To fulfill this requirement, Perennial first identified the 18 sources of potential seismic hazards at the site. As explained in Exhibit H, earthquakes typically 19 occur in the Pacific Northwest as a result of the collision between the Juan de Fuca plate and 20 the North American plates. These two plates meet along a thrust fault called the Cascadia 21 Subduction Zone, which runs approximately parallel to the coastline from northern California to 22 southern British Columbia. As further explained in Exhibit H, within present understanding of 23 the regional tectonic framework and historical seismicity, three broad earthquake sources have 24 been identified: the Subduction Zone Interface Earthquakes (Interplate); deep-focus, Intraplate 25 Earthquakes (Intraslab); and Shallow-focus Crustal Earthquakes. Exhibit H describes each of the 26 three earthquake sources and their maximum probable earthquakes, as determined by the 27 2010 Oregon Structural Specialty Code.63 28 29 In addition, the applicant identified and described the shallow crustal fault systems and folds 30 that are located throughout Oregon and Washington and have been characterized by the USGS. 31 As explained in the ASC, there are Class A fault systems and Class B fault systems within 32 approximately 75 to 100 kilometers (50 to 60 miles) of the project site. Class A and B faults, 33 according to geologic evidence published and the ASC, demonstrate the existence of 34 Quaternary deformation, and therefore, the faults are correlated to a higher potential for 35 earthquake generation. Class A and B names, general locations relative to the site, fault lengths, 36 slip rates, and the time since their most recent deformation are summarized in Table H-3 and 37 Table H-4 of the ASC.64 38

61 ASC, Exhibit H, H-5. 62 ASC, Exhibit H, H-6. 63 ASC, Exhibit H. H-6. 64 ASC, Exhibit H, H-7.


1 The applicant calculated the maximum credible earthquake source magnitude and epicentral 2 distance from the station site and step-up substation site, which are reproduced below. 3 4 Table C-1 Maximum Credible Earthquake Source Magnitude and Epicentral Distance from the Station

Earthquake Source Maximum Moment

Magnitude Epicentral Distances (miles

[km])

Random Hazard (WUS Shallow Gridded) 5.0 11 [16]

Crustal Faults 6.7 to 7.5 12 to 60 [20 to 100]

Intraslab 7.0 70 to 75 [110 to 120]

Interface 9.0 210 to 260 [340 to 420]

Key: Km = Kilometer; WUS = Western United States

5 Table C-2 Maximum Credible Earthquake Source Magnitude and Epicentral Distance from the Step-up Substation

Earthquake Source Maximum Moment

Magnitude Epicentral Distances

(miles [km])

Random Hazard (WUS Shallow Gridded) 5.0 10 [16]

Crustal Fault 6.7 to 7.5 3 to 55 [5 to 90]

Intraslab 7.0 70 to 75 [110 to 120]

Interface 9.0 210 to 260 [340 to 420]

Key: Km—kilometers; WUS—Western United States

6 The locations, approximate magnitude, and years of recorded earthquakes within 50 miles of 7 the Station and step-up substation were included in Appendix H-1, Figure H-5 of the ASC. 8 Further, a table summary of all recorded earthquakes that have caused ground shaking at the 9 Station and step-up substation site more intense than the Modified Mercalli III intensity was 10 provided in Appendix H-1, Attachment H-4. 11 12 As explained in Exhibit H, the deterministic MPE and MCE ground motion at each facility site 13 resulting from an earthquake on the sources listed above in Tables C-1 and C-2 were estimated 14 by the applicant using the maximum magnitude, minimum epicentral distance, and ground 15 motion prediction equations (GMPE).65 See Figures H6 and H7 in Attachment H-1. As discussed 16 in Exhibit H, amplification of ground motion can occur in deep, soft soil profiles, or at sites 17 located on top of an outcrop or basin. However, in this instance, the proposed project site is 18 relatively flat ground, and the explored subsurface conditions primarily consist of dense to very 19 dense sand and gravel. Based on these conditions, Perennial anticipates a low risk of 20

65 ASC, Exhibit H, H-11.


amplification that would result in ground motion greater than those characteristics identified in 1 Table H-2.66 2 3 Based upon the evidence provided, the Council finds that Perennial has adequately 4 characterized seismic hazards that are expected to result from maximum probable ground 5 motion events, and has relied on appropriate site-specific studies, taking into account ground 6 failure and amplification for the specific site profile. 7 8

B. OAR 345-022-0020(1)(b) 9 10 (b) The applicant can design, engineer, and construct the facility to avoid dangers to 11 human safety presented by seismic hazards affecting the site that are expected to result 12 from maximum probable ground motion events. As used in this rule "seismic hazard" 13 includes ground shaking, ground failure, landslide, liquefaction, lateral spreading, 14 tsunami inundation, fault displacement, and subsidence; 15

16 As provided in the ASC, based upon the location and topography of the Station and step-up 17 substation site, preliminary site specific geotechnical explorations, and preliminary geotechnical 18 engineering evaluation, there is a low risk of seismically induced ground failure, landslide, 19 lateral spreading, liquefaction, tsunami inundation, fault displacement, and subsidence. 20 Perennial anticipates that liquefaction is not a concern because the subsurface soils, as 21 described in more detail in Exhibit I as well as the Exhibit H Appendices, include dense sands 22 and gravel and very stiff to hard cohesive soils, with relatively deep ground water tables.67 23 Liquefaction induced lateral spreading would thus not pose a risk because this type of 24 subsurface profile does not meet the criteria for liquefaction to occur. Further, landslides are 25 not a concern because the site is flat and there are no nearby slopes. The risks of ground failure 26 and fault displacement is also low because, as discussed in Exhibit H, the site is more than 12 27 miles from the nearest mapped fault.68 Therefore, based upon the information provided, the 28 risk of liquefaction, liquefaction induced lateral spreading, landslides and ground failure/fault 29 displacement is low. 30 31 While the ASC does identify ground shaking as a potential seismic hazard, the applicant 32 proposes to design the facility to be able to resist ground shaking from an event with a 2,475 33 year recurrence interval. Further, the applicant states that all structures at the facility would be 34 designed to Site Class C specifications, in accordance with the site classification criteria in the 35 International Building Code.69 The loess layer for the Station site and the fine-grained alluvium 36 silty sands at the step-up substation site have been found to be potentially collapsible or 37 subject to strength loss. Therefore, the applicant proposes to remove these layers and to 38

66 ASC, Exhibit H, H-6. 67 ASC, Exhibit H, H-13. 68 ASC, Exhibit H, H-13. 69 ASC, Exhibit H, H-13.


backfill the excavated area with structural fill. For lighter components, the applicant proposes 1 to remove and backfill the upper 3 feet of the loess prior to the foundation being laid.70 2 3 Because Perennial has identified ground shaking as a potential seismic hazard at the site, in 4 order to ensure implementation of the safety design measures presented in the application, the 5 Council adopts the following conditions: 6 7

Condition C.3: The certificate holder shall design the facility to resist ground shaking from 8 an event with a 2,475-year recurrence interval. All structures shall be designed in 9 accordance with the Oregon Structural Special Code (2010) and the 2009 International 10 Building Code. 11 12 Condition C.4: Prior to beginning construction, the certificate holder shall submit a written 13 plan, subject to approval by the department, for implementing soil improvement 14 techniques identified in the geotechnical evaluation. 15

16 In addition, the certificate holder is subject to the following mandatory condition: 17 18

Condition C.5 [OAR 345-027-0020(12)]: The certificate holder shall design, engineer and 19 construct the facility to avoid dangers to human safety presented by seismic hazards 20 affecting the site that are expected to result from all maximum probable seismic events. As 21 used in this rule, “seismic hazard” includes ground shaking, landslide, liquefaction, lateral 22 spreading, tsunami inundation, fault displacement and subsidence. 23

24 Based on the evidence in the record and subject to compliance with the above conditions, the 25 Council finds that the certificate holder can design, engineer, and construct the facility to avoid 26 dangers to human safety presented by seismic hazards affecting the site that are expected to 27 result from maximum probable ground motion events. 28 29

C. OAR 345-022-0020(1)(c) and (d) 30 31 (c)The applicant, through appropriate site-specific study, has adequately characterized 32 the potential geological and soils hazards of the site and its vicinity that could, in the 33 absence of a seismic event, adversely affect, or be aggravated by, the construction and 34 operation of the proposed facility; and 35 (d) The applicant can design, engineer and construct the facility to avoid dangers to 36 human safety presented by the hazards identified in subsection (c). 37

38 In Exhibit H, the applicant describes potential non-seismic geological and soil hazards at the 39 site. The applicant states that landslides and flooding are not anticipated because the site is flat 40



and well above the 100-year flood elevations. The soils on site are classified as moderately 1 erodible on the United State Soil Conservation Service mapping; however, as explained in the 2 ASC, erosion is a low risk because the facility components would be generally founded on gravel 3 and bedrock with surfaces paved or covered by gravel.71 However, Perennial does identify 4 collapsible soils, high winds and flash floods as potential hazards that could cause erosion of 5 exposed soils. Consequently, to avoid the risks related to the potentially collapsible soils at the 6 site, the applicant proposes to remove the potentially collapsible layers and backfill with 7 structural fill. Based upon this identified hazard and the proposed mitigation measures, the 8 Council adopts Condition C.5 above. 9 10 Further, Perennial agrees to design facility components in accordance with the current 11 construction codes to resist high wind loads and to revegetate exposed soils to resist erosion 12 (revegetation requirements are discussed further below in consideration of the Council’s Soil 13 Standard). Grading and drainage facilities at the site will also be designed to accommodate 14 runoff from flash floods. 15 16 The following mandatory conditions ensure that characterizations used to design, engineer and 17 construct the facility are updated to reflect any unexpected non-seismic hazards identified by 18 future site investigations: 19 20

Condition C.6 [OAR 345-027-0020(13)]: The certificate holder shall notify the department, 21 the State Building Codes Division and the Department of Geology and Mineral Industries 22 promptly if site investigations or trenching reveal that conditions in the foundation rocks 23 differ significantly from those described in the application for a site certificate. After the 24 department receives the notice, the Council may require the certificate holder to consult 25 with the Department of Geology and Mineral Industries and the Building Codes Division and 26 to propose mitigation actions. 27 28 Condition C.7 [OAR 345-027-0020(14)]: The certificate holder shall notify the department, 29 the State Building Codes Division and the Department of Geology and Mineral Industries 30 promptly if shear zones, artesian aquifers, deformations or clastic dikes are found at or in 31 the vicinity of the site. 32

33 Based upon the evidence provided above, and subject to compliance with the site certificate 34 conditions, the Council finds that the applicant has adequately characterized the potential 35 geological and soil hazards of the site and its vicinity, and further that the applicant can design, 36 engineer and construct the facility to avoid dangers to human safety presented by the non-37 seismic hazards identified. 38 39



IV.C.2. Structural Standard: Conclusions of Law 1 2 Based on the foregoing findings and the evidence in the record, and subject to compliance with 3 the site certificate conditions, the Council finds that the facility complies with the Council’s 4 Structural Standard. 5 6 IV.D. Soil Protection [OAR 345-022-0022] 7 8 To issue a site certificate, the Council must find that the design, construction and operation of 9 the facility, taking into account mitigation, are not likely to result in a significant adverse impact 10 to soils including, but not limited to, erosion and chemical factors such as salt deposition from 11 cooling towers, land application of liquid effluent, and chemical spills. 12 13

IV.D.1. Soil Protection: Findings of Fact 14 15

The soil protection standard requires the Council to identify any significant adverse impact to 16 soils, such as erosion and chemical factors. Construction and operation of the facility can 17 adversely affect soils through erosion, compaction and chemical spills. Adverse impacts to soils 18 can affect crop production on adjacent agricultural lands, native vegetation, fish and wildlife 19 habitat, and water quality. Perennial provided information regarding potential soil impacts in 20 Exhibit I of the ASC. The analysis area for the soil protection standard is the area within the site 21 boundary. 22 23 The area within the site boundary encompasses 60.15 acres, 23.48 acres of which would be 24 permanently impacted and 36.67 acres temporarily impacted. As explained in the ASC, the 25 exact locations of work areas (i.e. stringing sites) associated with the reconductoring of the 26 transmission line have not yet been determined; however, the activities to occur at each 27 stringing site would not include grading or other soil disturbing activities and all activities, 28 including the pulling stations, would be located within the boundaries of the existing 29 transmission line right of way. As explained in Exhibit I, Perennial’s strategy for the construction 30 of the transmission inter-ties, substation and natural gas lateral is to minimize the area of 31 disturbance.72 32 33 34

A. Existing Soil Conditions and Potential Impacts to Soil 35 36

Within the analysis area, Perennial identified four soil series, which contain a total of seven soil 37 phases. Soil classes were identified using the Natural Resources Conservation Service soil survey 38 program.73 Generally, the erosion hazard for the soils found within the site boundary range 39 from slight to moderate. As presented in the ASC, based upon the United States Geolgoical 40

72 ASC, exhibit I, I-10. 73 ASC, Exhibit I, I-3.


Survey Gap Analysis Program, the predominant land use categories in the analysis area, are 1 classified as Agricultural Vegetation, Developed & Other Human Use, and Semi-Desert. Land 2 uses within these areas include existing industrial uses, farm and agricultural uses and limited 3 natural resource areas.74 4 5 During construction, potential impacts could result from the removal of topsoil, wind or water 6 erosion, contamination from oil or other spills from construction equipment, and potentially 7 construction debris. Additionally, construction activities could increase the risk of invasive 8 weeds by potentially transporting invasive weeds on construction equipment or by allowing 9 invasive weeds to revegetate disturbed areas.75 Due to the increased risk of introducing 10 invasive weeds, soil quality could also be degraded from the application of specific herbicides, if 11 used improperly.76 As discussed in the ASC, potential soil erosion hazards during 12 decommissioning would be similar to those that occur during construction. During operation, 13 potential impacts could result from stormwater runoff, cooling tower plume impacts, sanitary 14 sewage, and chemical or other hazardous material spills or leaks. 15 16

B. Measures to Mitigate Adverse Impacts to Soil 17 18 (a) Potential Soil Impacts from Erosion 19

20 As stated in the ASC, during construction the applicant would take all measures necessary to 21 ensure soil protection, including erosion control methods, and during construction the site 22 certificate holder would be subject to compliance with a National Pollution Discharge 23 Elimination System (NPDES) Stormwater Discharge General Permit #1200-C. The 1200-C permit 24 is a federally-delegated permit outside Council jurisdiction issued by the Oregon Department of 25 Environmental Quality (DEQ). Generally, NPDES 1200-C permits include the approval and 26 implementation of an Erosion and Sediment Control Plan (ESCP) that governs erosion control 27 during construction activities and require the use of best management practices during 28 construction. 29 30 Perennial submitted its NPDES 1200-C permit application to the DEQ on September 9, 2013 and 31 included a copy of that application in Exhibit I of the ASC. Based on its evaluation of the NPDES 32 permit application and associated ESCP, DEQ notified the department on February 6, 2014 that 33 DEQ expects to be able to issue the NPDES 1200-C construction stormwater permit for the 34 facility within 30 days of receiving the site certificate from the Council and review of the final 35 version of the ESCP. 36 37 As described in the ASC, the ESCP would include, but not be limited to, the following erosion 38 control measures: 39

74 ASC, Exhibit I, I-5. 75 ASC, Exhibit I, I-6. 76 ASC, Exhibit I, I-6.


1

Phase clearing and grading to the maximum extent practical to prevent exposed, 2 inactive areas from becoming a source of erosion. 3

Identify, mark, and protect (by fencing or other means) critical riparian areas and 4 vegetation, including important trees and associated rooting zones and vegetation areas 5 to be preserved. Identify vegetative buffer zones between the Site and sensitive areas, 6 and other areas to be preserved. 7

Preserve existing vegetation when practical and re-vegetate open areas. Re-vegetate 8 open areas when practical before and after grading or construction. 9

Implement erosion and sediment control measures, including perimeter sediment 10 control, which must be in place before vegetation is disturbed and must remain in place 11 and be maintained, repaired, and promptly implemented following procedures 12 established for the duration of construction, including protection for active storm drain 13 inlets and catch basins an appropriate non-stormwater pollution control. 14

Apply temporary and/or permanent soil stabilization measures immediately on all 15 disturbed areas as grading progresses and for all roadways including gravel roadways. 16

Establish material and waste storage areas and other non-stormwater controls. 17

Use best management practices to prevent or minimize stormwater exposure to 18 pollutants from spills, vehicle and equipment fueling, maintenance and storage, other 19 cleaning and maintenance activities, and waste handling activities. 20

Use water, a soil-binding agent, or other dust control techniques as needed to avoid 21 windblown soil. 22

Follow the manufacturers’ recommendations for the application rate of fertilizers used 23 to reestablish vegetation to minimize nutrient releases to surface waters. 24

Temporarily stabilize soils at the end of the shift before holidays and weekends, if 25 needed. 26

Avoid or minimize excavation and creation of bare ground during wet weather. 27

Sediment barrier: remove trapped sediment before it reaches specified heights and 28 before barrier removal. 29

Clean catch basins and sediment basins before retention capacity has been reduced by 30 50 percent. 31

Clean up significant sediment that has left the construction site within 24 hours. 32 Vacuuming or dry sweeping and material pickup must be used to clean up released 33 sediments. 34

Intentional washing of sediment into storm sewers or drainage ways is prohibited 35

The entire site must be temporarily stabilized using vegetation or a heavy mulch layer, 36 temporary seeding, or other method should all construction activities cease for 30 days 37 or more. 38

Provide temporary stabilization for any portion of the Site where construction activities 39 cease for 14 days or more with a covering of blown straw and a tackifier, loose straw, or 40 an adequate covering of compost mulch until work resumes on that portion of the Site. 41


Provide permanent erosion control measures on all exposed areas. Do not remove 1 temporary sediment control practices until permanent vegetation or other cover of 2 exposed areas is established. 3 4

To ensure compliance with the ESCP and to further minimize the potential impacts to soils via 5 erosion, the Council adopts the following conditions: 6 7

Condition D.1: The certificate holder shall conduct all construction work in compliance with 8 an Erosion and Sediment Control Plan (ESCP) satisfactory to the Oregon Department of 9 Environmental Quality and as required under the National Pollutant Discharge Elimination 10 Systems (NPDES) #1200-C Construction Stormwater Discharge General Permit. The 11 certificate holder shall include in the ESCP any measures necessary to meet local erosion 12 and sediment control requirements or stormwater management requirements. 13 14 Condition D.2: During construction, the certificate holder must implement best 15 management practices to control dust generated by construction activities, such as applying 16 water to roads and disturbed soil areas. 17

18 Beyond the ESCP, Perennial has also developed a revegetation and noxious weed control plan 19 to minimize the potential expansion of invasive weeds in disturbed areas, resulting from 20 construction. According to the ASC, the Umatilla County Weed Control Board has reviewed and 21 approved the plan.77 Further, as noted above, since the application of specific herbicides may 22 be necessary to control noxious weeds and because the improper use of herbicides has the 23 potential to impact soil quality, Perennial proposes to minimize the likelihood of that impact by 24 evaluating the need to use herbicides on a site-specific basis, by contracting with a licensed 25 contractor to prescribe and apply treatments, if determined necessary, and by coordinating 26 with each landowner prior to the application of herbicides. To ensure these proposed measures 27 are undertaken and the spread of noxious weeds limited, the Council adopts the following 28 conditions: 29 30

Condition D.3: To control the introduction and spread of noxious weeds, the certificate 31 holder must implement the requirements of the approved Revegetation and Noxious Weed 32 Control Plan during all phases of construction and operation of the facility. Amendments to 33 the Revegetaion and Noxious Weed Control Plan must be reviewed and approved by the 34 Umatilla County Weed Control Board and submitted to the department no later than 30 35 days after approval. 36

37 Condition D.4: If herbicides are determined necessary, the certificate holder shall contract 38 with a licensed contractor to prescribe and apply the proper treatments. Additionally, the 39 certificate holder shall coordinate with each individual landowner prior to the application of 40

77 ASC, Exhibit I, I.6. The Umatilla County Weed Control Board has reviewed and approved the plan.


specific herbicides. The certificate holder shall submit to the department evidence of 1 consultation with the landowners prior to application of the herbicides and evidence of a 2 contract with a licensed contractor. 3 4 Condition D.5: During construction, the certificate holder shall limit truck traffic to 5 improved road surfaces. Within 60 days of completing construction, the applicant shall 6 mitigate any areas of soil compaction by measures to include scarification and reseeding. 7

8 In addition, mandatory condition A.8 [OAR 345-027-0020(11)], above, requires that upon 9 completion of construction, the site certificate holder must restore vegetation to the extent 10 practicable and to landscape all areas disturbed by construction in a manner compatible with 11 the surroundings and proposed use, which would further minimize the potential for continued 12 erosion as well as the spread of noxious weeds. 13 14 Based upon the evidence in the record, and subject to compliance with the above conditions, 15 the Council finds that erosion resulting from the design, construction and operation of the 16 facility is unlikely to result in a significant adverse impact to soils. 17 18

(b) Potential Soil Impacts from Spills 19 20

Perennial would store any hazardous material to be used at the facility on site. In order to 21 minimize the chance of accidental releases into the environment and to prevent the 22 contamination of soils, the applicant proposes to submit a Material Safety Data sheet for all 23 hazardous chemicals to be used or stored by the construction contractor at or around the job 24 site. The applicant offers to provide this data sheet to the Local Emergency Planning Committee 25 and local fire department as well. In addition, the ASC states that a Spill Prevention Control and 26 Countermeasure (SPCC) Plan would be prepared for use when the project commences 27 operation.78 The SPCC program is administered by the U.S. Environmental Protection Agency 28 and requires facilities with over 1,320 gallons of aboveground oil storage capacity to develop 29 and implement a SPCC Plan. An SPCC plan includes operating procedures to prevent oil spills, 30 control measures such as secondary containment to contain spills, and countermeasure to 31 contain, clean up and mitigate the effects of an oil spill. The SPCC Plan is only required to 32 address potential spills of oil products and does not apply to hazardous materials or other 33 chemicals. Therefore, the Council adopts the following conditions to ensure the department is 34 able to monitor cleanup of any potential spills, to ensure adequate spill response procedures 35 are implemented and to mitigate the impacts of any spill, should a spill occur: 36

37 Condition D.6: The certificate holder shall develop and implement a Hazardous Materials 38 Management and Monitoring Plan (the Plan), which shall include and maintain a Materials 39 Safety Data sheet for all hazardous chemicals stored onsite. The Plan shall contain best 40

78 ASC. Exhibit I, I-9.


management practices and hazardous waste training for construction and operation 1 personnel. The certificate holder shall submit a copy of this plan to the department for 2 review and approval prior to the commencement of construction of the facility. 3

4 Condition D.7: Prior to operation, the certificate holder shall develop a Spill Prevention 5 Control and Countermeasure Plan for implementation during the facility’s operation. The 6 certificate holder shall submit a copy of this plan to the department prior to 7 commencement of operation of the Station. 8 9 Condition D.8: If a reportable release of hazardous material occurs during construction or 10 operation of the facility, the certificate holder shall notify the department within 72 hours 11 of the occurrence, clean up the release, and dispose of any contaminated soil or other 12 materials according to applicable regulations. The certificate holder shall make spill control 13 and containment kits readily available in areas containing fuel oil, lubricating oil, hydraulic 14 oil, and chemicals, as well as chemical unloading areas. The spill kits shall be equipped with 15 sorbent pads, diatomaceous earth, shovels and appropriate hand tools, curtain booms if 16 working near open water, personal protection equipment, and temporary waste disposal 17 containers. 18

19 Based on evidence in the record, and subject to compliance with the conditions, the Council 20 finds that spills resulting from the construction and operation of the facility are unlikely to 21 result in a significant adverse impact to soils. 22 23

(c) Potential Impacts to Soil from Stormwater 24 25 As explained in the ASC, and as discussed above, during construction the applicant would be 26 subject to compliance with the NPDES Stormwater Discharge General Permit #1200-C. In 27 addition, stormwater would be directed away from construction areas and into 28 sediment/detention basins to minimize offsite runoff. During operation, stormwater runoff 29 would be diverted to a lined stormwater detention basin and allowed to infiltrate into the 30 ground under the basin through gravity and natural drainage. Areas exposed to industrial 31 activity would be routed through an oil/water separator before being routed to the basin and 32 no stormwater would be discharged from the Station.79 Diverting runoff to the stormwater 33 basin would prevent stormwater from impacting the soils within the site boundary as well as 34 soils outside the site boundary. 35 36 Based upon the evidence in the record, the Council finds that the design, construction and 37 operation of the facility is unlikely to result in a significant adverse impact to soils from 38 stormwater discharge. 39 40

79 ASC, Exhibit I, Section I.5.


(d) Potential Soil Impacts from Salt Deposition from Cooling Towers 1 2

Perennial discussed potential impacts from the cooling tower in Exhibit Z of the ASC. Based 3 upon the Exhibit Z analysis, Perennial anticipates no potential adverse impacts warranting 4 mitigation from operation of the cooling tower.80 The proposed facility would utilize a 5 mechanical-draft “wet” cooling tower. Mechanical-draft wet cooling towers force air into the 6 cooling tower through a fine spray of heated water, where evaporation cools the water stream 7 and transfers heat to the air. The warm air exhausts vertically, dispelling excess heat and when 8 it comes into contact with the cooler ambient atmosphere, the water vapor condenses into fine 9 water drops, creating a steam plume. As the plume cools and condenses, solids are deposited 10 on the ground. Utilizing Seasonal/Annual Cooling Tower Impact (SACTI) modeling, the applicant 11 assessed the deposition rates for salts. Based upon those results, the greatest salt deposition 12 rates would occur within 200 meters of the cooling tower, all within the facility site boundary.81 13 These soils would be at least partially covered by facility structures and artificial surfaces. 14 Beyond the site boundary, deposition rates decrease rapidly and were modeled to be less than 15 5 kilograms per square kilometer per month. The closest irrigation circles are 700 meters away, 16 with the predicted deposition rates at that distance lower than 1 kilogram per square mile per 17 month. As a point of comparison, Perennial notes that the average application rates of 18 nitrogen-based fertilizers to agricultural fields in the Midwest are approximately 775 kilograms 19 per square mile per month. Based upon the anticipated deposition rates provided, the Council 20 agrees that there are no potential significant adverse impacts warranting mitigation to soils 21 based upon impacts from salt deposition from the cooling tower. 22 23 Based on the evidence in the record, the Council finds that salt deposition from cooling towers 24 resulting from the design, construction and operation of the facility is not likely to result in a 25 significant adverse impact to soils. 26 27

C. Monitoring 28 29 During construction, the applicant proposes to inspect the site boundary weekly at active 30 construction areas and every two weeks at inactive areas. Additionally, the applicant proposes 31 that both active and inactive sites would be inspected at least daily during periods when 0.5 32 inches or more rain has fallen in a 24-hour period. After construction, the applicant proposes to 33 landscape the area surrounding the site and return disturbed areas to their original contours.82 34 As explained in the ASC, the applicant would monitor revegetated areas quarterly in the first 35 year to ensure success of revegetation. To ensure appropriate monitoring occurs, the Council 36 adopts the following condition: 37

38 Condition D.9: During construction of the facility, the certificate holder must complete the 39

80 ASC, Exhibit I, Section I.5. 81 ASC, Exhibit Z, Z-16. 82 See mandatory condition OAR 345-027-0020(11).


following monitoring to ensure that there are no significant potential adverse impacts to 1 soils: 2 3

(a) During construction, the certificate holder shall monitor disturbed area erosion and 4 sediment control measures at the active construction areas on a weekly basis and every 5 two weeks on inactive areas. Inspection of both active and inactive areas must occur at 6 least daily during periods when 0.5 inches or more rain has fallen in a 24-hour period. 7 (b) The certificate holder must remove trapped sediment when storage capacity has 8 been reduced by 50 percent. Sediments shall be placed in an upland area certified by a 9 qualified wetlands specialist. 10 (c) If the erosion and sediment control measures are deemed ineffective, different 11 strategies and/or measures shall be implemented, maintained and monitored after 12 consultation with the department. 13 (d) After completing construction in an area, the certificate holder must monitor the 14 area until soils are stabilized and evaluate whether construction-related impacts to soils 15 are being adequately addressed by the mitigation procedures described in the Erosion 16 and Sediment Control Plan and the Revegetation and Noxious Weed Control Plan. As 17 necessary, the certificate holder must implement follow-up restoration measures such 18 as scarification and reseeding to address those remaining impacts. 19 20

IV.D.2. Soil Protection: Conclusions of Law 21 22 Based on the foregoing findings and the evidence in the record, and subject to compliance with 23 the site certificate conditions, the Council finds that the facility complies with the Council’s 24 Siting Standards for Soil Protection. 25 26 IV.E. Land Use [OAR 345-022-0030] 27 28

(1) To issue a site certificate, the Council must find that the proposed facility complies 29 with the statewide planning goals adopted by the Land Conservation and Development 30 Commission. 31 32 33 (2) The Council shall find that a proposed facility complies with section (1) if: 34 *** 35

36 (b) The Applicant elects to obtain a Council determination under ORS 469.504(1)(b) 37 and the Council determines that: 38

39 (A) The proposed facility complies with applicable substantive criteria as 40 described in section (3) and the facility complies with any Land Conservation and 41


Development Commission administrative rules and goals and any land use 1 statutes directly applicable to the facility under ORS 197.646(3); 2 3 (B) For a proposed facility that does not comply with one or more of the 4 applicable substantive criteria as described in section (3), the facility otherwise 5 complies with the statewide planning goals or an exception to any applicable 6 statewide planning goal is justified under section (4); or 7 8 (C) For a proposed facility that the Council decides, under sections (3) or (6), to 9 evaluate against the statewide planning goals, the proposed facility complies 10 with the applicable statewide planning goals or that an exception to any 11 applicable statewide planning goal is justified under section (4). 12 13

(3) As used in this rule, the “applicable substantive criteria” are criteria from the affected 14 local government’s acknowledged comprehensive plan and land use ordinances that are 15 required by the statewide planning goals and that are in effect on the date the Applicant 16 submits the application. If the special advisory group recommends applicable 17 substantive criteria, as described under OAR 345-021-0050, the Council shall apply them. 18 If the special advisory group does not recommend applicable substantive criteria, the 19 Council shall decide either to make its own determination of the applicable substantive 20 criteria and apply them or to evaluate the proposed facility against the statewide 21 planning goals. 22 23 (4) The Council may find goal compliance for a proposed facility that does not otherwise 24 comply with one or more statewide planning goals by taking an exception to the 25 applicable goal. Notwithstanding the requirements of ORS 197.732, the statewide 26 planning goal pertaining to the exception process or any rules of the Land Conservation 27 and Development Commission pertaining to the exception process, the Council may take 28 an exception to a goal if the Council finds: 29

30 (a) The land subject to the exception is physically developed to the extent that the 31 land is no longer available for uses allowed by the applicable goal; 32 33 (b) The land subject to the exception is irrevocably committed as described by the 34 rules of the Land Conservation and Development Commission to uses not allowed by 35 the applicable goal because existing adjacent uses and other relevant factors make 36 uses allowed by the applicable goal impracticable; or 37 38 (c) The following standards are met: 39

40 (A) Reasons justify why the state policy embodied in the applicable goal should 41 not apply; 42


1 (B) The significant environmental, economic, social and energy consequences 2 anticipated as a result of the proposed facility have been identified and adverse 3 impacts will be mitigated in accordance with rules of the Council applicable to 4 the siting of the proposed facility; and 5 6 (C) The proposed facility is compatible with other adjacent uses or will be made 7 compatible through measures designed to reduce adverse impacts. 8 * * * 9

10 IV.E.1. Land Use: Findings of Fact 11

12 Under OAR 345-021-0010(1)(k), an applicant must elect whether to address the Council’s land 13 use standard by obtaining local land use approvals under ORS 469.504(1)(a) or by obtaining a 14 Council determination under ORS 469.504(1)(b). Perennial elected to have the Council make 15 the land use determination under ORS 469.504(1)(b) and OAR 345-022-0030(2)(b). The 16 applicant provided information about compliance with the Council’s Land Use Standard in 17 Exhibit K of the ASC. 18 19 The Council must apply the land use standard in conformance with the requirements of ORS 20 469.504. Under ORS 469.504(1)(b)(A), the Council may find compliance with statewide planning 21 goals if the Council finds that the proposed facility “complies with applicable substantive 22 criteria from the affected local government’s acknowledged comprehensive plan and land use 23 regulations that are required by the statewide planning goals and in effect on the date the 24 application is submitted.” Perennial submitted a preliminary application for site certificate on 25 April 3, 2014 and the affected local governments are Umatilla County and the City of Umatilla.83 26 In accordance with ORS 469.401(3), after issuance of a site certificate, Umatilla County and the 27 City of Umatilla shall “upon submission by the applicant of the proper applications and the 28 payment of proper fees, but without hearings or other proceedings” promptly issue the related 29 permits and approvals, subject only to the conditions set forth in the site certificate.84 30 31 The proposed facility is located entirely within Umatilla County. The energy facility site and 32 natural gas pipeline would be located completely within unincorporated Umatilla County; 33 however, the transmission line ROW includes sections within unincorporated Umatilla County 34 as well as areas within the City of Umatilla Urban Growth Area (UGA) and in the City of 35 Umatilla. The step-up substation and underground cable would be located in Umatilla County, 36 within the City of Umatilla UGA, but outside the city limits. The City of Umatilla UGA is subject 37 to the 1972 Umatilla County Zoning Ordinance. 38

83 OAR 345-021-0050((6)(b)(A) states that “For purposes of this rule, the application is submitted on the

date that Department receives the preliminary application.” 84 Each state or local government agency that issues a permit, license or certificate continues to exercise

enforcement authority over the permit, license or certificate.


1 The land use analysis begins with the identification of the “applicable substantive criteria.” The 2 Council appointed the governing bodies of Umatilla County and the City of Umatilla as Special 3 Advisory Groups (SAGs).85 Pursuant to ORS 469.504(5), if the SAG recommends applicable 4 substantive criteria for an energy facility or a related and supporting facility that does not pass 5 through more than one local government jurisdiction or more than three zones in any one 6 jurisdiction, the Council shall apply the criteria recommended by the special advisory group. If 7 the SAG does not recommend applicable substantive criteria the Council may either determine 8 and apply the applicable substantive criteria under subsection (1)(b) of ORS 469.504 or 9 determine compliance with the statewide planning goals under ORS 469.504 (1)(b)(B) or (C) of 10 this section. On September 23, 2013 the Umatilla County Board of County Commissioners 11 submitted “applicable substantive criteria” for Umatilla County and confirmed those criteria in 12 its May 5, 2014 comment letter on the preliminary application. Further, on November 24, 2014, 13 the County submitted comments on the complete application and the proposed facility’s 14 compliance with the previously identified applicable substantive criteria. The City of Umatilla 15 also submitted comment on the preliminary application.86 However, in its comment the City 16 states that because the transmission line would be utilizing existing facilities and would pass 17 through the City’s Urban Growth boundary, which is regulated by Umatilla County (1972 UCZO), 18 the City of Umatilla would not require a conditional use permit for use of existing facilities and 19 the City would not otherwise have any regulatory authority over this part of the project.87 20 21 The Council applied the applicable substantive criteria pursuant to ORS 469.504(1)(b)(A) as 22 follows: 23 24 25 26

Applicable Substantive Criteria

Umatilla County Development Code §§ 152.055, 152.056, 152.059, 152.060, 152.615, 152.617, 152.061, 152.063; 152.301, 152.303,152.304, 152.305, 152.306, 152.615, 152.616; 152.281, 152.283, 152.245, 152.285, 152.286; 152.615, 152.616; 152.612; 152.010, 152.011, 152.016, 152.017, 152.018, 152.545, 152.56, 152.562

Umatilla County Transportation System Plan

85Order Appointing Special Advisory Groups, May 11, 2012; Order Appointing the City Council of the City

of Umatilla as a Special Advisory Groups, May 03, 2013. 86 The City notes that the because the transmission line would be located on existing facilities and would

pass through the City’s Urban Growth boundary which is regulated by Umatilla County, the City of Umatilla would not require a conditional use permit because the use of existing facilities or would not otherwise have any regulatory authority over this part of the project. PERAPPDoc8.

87 PERAPPDoc8.


Umatilla County Comprehensive Plan Policies: Citizen Involvement Recommended Policies: 1, 5; Agriculture Recommended Policies: 1, 8, 17; Open Space, Scenic and Historic Areas, and Natural Areas Policies: 1(a), 5(a & b), 6(a), 8(a), 9(a), 10(c, d & e), 20(b)(1-8), 23(a), 24(a), 26, 37, 38(a-c), 39(a), 42(a); Air, Land, Water Qualities Policies: 1, 7, 8; Natural Hazards Policies: 1, 4; Recreational Needs Policies: 1; Economy of the County Policies: 1, 4, 8(a-f); Public Facilities and Services Policies: 1(a-d), 2, 9, 19; Transportation Policies: 18, 20; Energy Conservation Policies: 1 1972 Umatilla County Zoning Ordinance (UCZO) UCZO §§ 3.010; 3.012; 3.014; 3.016; 3.020; 3.024; 3.026; 2.140;, 3.144; 3.146; 3.070; 3.072; 3.073; 7.010; 7.020; 7.040;

1 IV.E.1.a. Applicable Substantive Criteria - Umatilla County

2 1. Zoning 3 4 The energy facility site and natural gas pipeline would be located on land zoned Exclusive Farm 5 Use (EFU) under the Umatilla County Development Code. The proposed transmission line would 6 be located primarily on land zoned EFU and within the existing UEC transmission line ROW as 7 the applicant is proposing to reconductor the line, utilizing the majority of the existing 8 infrastructure.88 However, portions of the transmission facilities would also cross small portions 9 of land zoned Light Industrial (LI) and Rural Tourist Commercial (RTC) under the current UCDC. 10 11 A. EFU, Exclusive Farm Use Zone 12 13 §152.055, Description and Purpose 14 15

The purposes of the EFU, Exclusive Farm Use Zone, are to preserve and maintain agricultural 16 lands for farm use, including range and grazing uses, consistent with existing and future 17 needs for agricultural products, forest and open spaces; to conserve and protect scenic 18 resources; to maintain and improve the quality of air, water and land resources of the 19 county and to establish criteria and standards for farm and non-farm uses and related and 20 supportive uses which are deemed appropriate. It is also the purpose of this use zone to 21

88 ASC, Exhibit K, K-7.


provide the automatic farm use valuation for farms, which qualify under the provisions of 1 ORS Chapter 308. 2

3 Pursuant to UCDC § 152.055, the purposes of the EFU zone are to preserve and maintain 4 agricultural lands for farm use and to establish criteria and standards for farm and non-farm 5 uses and related and supportive uses which are deemed appropriate. The comprehensive plan, 6 therefore, does recognize non-farm development in areas designated as EFU. Furthermore, 7 under UCDC §152.059(C), “utility facilities necessary for public service” are specifically 8 permitted within EFU zones, while “commercial utility facilities for the purposes of generating 9 power for public use by sale” are allowed as a conditional use under UCDC § 152.060(F). 10 Additionally, the reconductored portions of the existing transmission line are permitted 11 outright under UCDC § 152.056(J). Each of these provisions is discussed in more detail below. 12 13 §152.056, Uses Permitted Outright 14 15

In an EFU zone, the following uses and their accessory uses are permitted without a zoning 16 permit, pursuant to § 152.007 17 ** 18 19 (J) Maintenance or minor betterment of existing transmission lines and facilities of utility 20 companies and agencies. 21

22 As discussed in the ASC, reconductoring the proposed transmission line from a 115 kV to 230 kV 23 is a minor betterment of an existing transmission line and, therefore, is permitted outright, 24 without a zoning permit. However, UCDC § 152.056 is only applicable to the reconductored 25 portions of the line and not to the potential six new poles (worst case scenario) proposed as 26 necessary to tie-in to the existing transmission infrastructure.89 From the tie-in, the facility’s 27 reconductored 230kV line would run for approximately 11.59 miles before terminating at the 28 step-up substation, discussed below. The total area to be impacted, temporarily, by the 29 reconductoring activities would be approximately 1.38 acres. Based upon the evidence 30 provided, the Council finds that the reconductored portions of the transmission line qualify as a 31 use permitted outright under UCDC § 152.056(J) and thus do not require a zoning permit. 32 33 §152.059, Land Use Decisions 34 35

In an EFU zone the following uses may be permitted through a land use decision via 36 administrative review (§ 152.769) and subject to the applicable criteria found in §152.617. 37 Once approval is obtained a zoning permit (§ 152.025) is necessary to finalize the decision. 38 *** 39

40

89 Three new transmission towers are proposed to be constructed in the EFU zone at the energy facility site.


(C) Utility facilities necessary for public service, including wetland waste treatment systems 1 but not including commercial facilities for the purpose of generating electrical power for 2 public use by sale or transmission or communication towers over 200 feet in height. A utility 3 facility necessary for public service may be established as provided in ORS 215.275 and in § 4 152.617 (II) (7). 5

6 The natural gas pipeline and the new transmission poles associated with the new transmission 7 line qualify as “utility facilities necessary for public service.”90 The new natural gas pipeline, as 8 described above, is a new pipeline lateral to be built within an existing 50-foot natural gas right-9 of-way and is approximately 4.63 miles long. As discussed above, the transmission line is, 10 predominately, a proposed reconductored line, which would require up to six new poles to tie 11 into the existing infrastructure. However, only three of the potential six new poles (worst-case 12 scenario) would be constructed on EFU land at the energy facility site.91 13 14 Pursuant to UCDC Section 152.159(C), a utility facility necessary for public service may be 15 permitted in an EFU zone through a land use decision via administrative review and a utility 16 facility necessary for public service may be established as provided in ORS 215.275 and UCDC § 17 152.617(II)(7) (Section 152.617 (II)(7)mirrors the statutory requirements provided at ORS 18 215.275).Under ORS 215.283(1)(c), “utility facilities necessary for public service” are permitted 19 in EFU zones.92 ORS 215.283(1)(c) operates in conjunction with ORS 215.275. Under ORS 20 215.275(1), a utility facility authorized by ORS 215.283(1)(c) is necessary for public service if it 21 must be sited in an exclusive farm use zone in order to provide the service. Further, ORS 22 215.275(2) states that to demonstrate that a utility facility is necessary for public service, the 23 applicant must show that reasonable alternatives have been considered and that the facility 24 must be sited in an EFU zone due to one or more of the factors listed in the statute and 25 provided below:93 26 27 ORS 215.275(2) 28 29

90 The step-up substation and underground line would also qualify as “utility facilities necessary for public

service,” however, the step-up substation and underground line, while located in Umatilla County, are within the City of Umatilla UGA and outside city limits. Therefore, they are subject to the 1972 Umatilla County Zoning Ordinance.

91 ASC, Exhibit K, K-20. 92 ORS 215.283 Uses permitted in exclusive farm use zones in nonmarginal lands counties (1) The following uses may be established in any area zoned for exclusive farm use: (c) Utility facilities necessary for public service, including wetland waste treatment systems but not

including commercial facilities for the purpose of generating electrical power for public use by sale or transmission towers over 200 feet in height. A utility facility necessary for public service may be established as provided in:

(A) ORS 215.275 (Utility facilities necessary for public service)… 93 The Oregon Land Use Board of Appeals recently confirmed that a county may only apply the criteria of

ORS 215.275 to a “utility facility necessary for public service.” WKN Chopin, LLC vs. Umatilla County, LUBA No. 2012-016( July 11, 2012).


(2) To demonstrate that a utility facility is necessary, an applicant for approval under 1 ORS 215.213(1)(c) or 215.283(1)(c) must show that reasonable alternative have been 2 considered and that the facility must be sited in an exclusive farm use zone due to one or 3 more of the following factors: 4

5 (a) Technical and engineering feasibility; 6 7 (b) The proposed facility is locationally dependent. A utility facility is locationally 8 dependent if it must cross lands in one or more areas zoned for exclusive farm use in 9 order to achieve a reasonably direct route or to meet unique geographical needs 10 that cannot be satisfied on other lands; 11 12 (c) Lack of available urban and non-resource lands; 13 14 (d) Availability of existing rights-of-way; 15 16 (e)Public health and safety; and 17 18 (f) Other requirements of state or federal agencies. 19

20 Generally, as explained in the ASC, the route for the natural gas pipeline, which utilizes an 21 existing natural gas pipeline ROW, provides the most direct route between the energy facility 22 site and the interconnecting pipeline. Any alternative routes in the area would necessarily be 23 longer and would still require EFU-zoned lands to be crossed. Likewise, there are no alternative 24 routes for the transmission line from the energy facility site to the McNary substation that 25 would not need to cross EFU-zoned lands. 26 27

(2)a. Technical and Engineering feasibility 28 29 As explained in the ASC, the current use and proposed continued use of existing ROW’s for both 30 the natural gas pipeline and transmission line demonstrate that these are technically feasible 31 routes for siting the pipeline and transmission line, respectively. While other routes may also be 32 feasible, any other routes would require greater additional impacts because the existing ROW’s 33 would not be used. 34 35

(2)b. The proposed facility is locationally dependent. A utility facility is locationally 36 dependent if it must cross lands in one or more areas zoned for exclusive farm use in order 37 to achieve a reasonably direct route or to meet unique geographical needs that cannot be 38 satisfied on other lands; 39

40 The natural gas pipeline is locationally dependent because, as explained in the application, 41 there is no alternative route to deliver natural gas to the Station that would avoid EFU lands. In 42


addition, the proposed pipeline route would minimize impacts on EFU lands by utilizing the 1 existing natural gas pipeline ROW.94 2 3 EFU lands lie between the energy facility site and the McNary substation and all other 4 substations in proximity to the Station.95 Therefore, the transmission line is also locationally 5 dependent because there is no alternative route, direct or indirect, that would avoid EFU lands 6 entirely. 7 8 (2)c. Lack of available urban and non-resource lands 9 10 As explained in the ASC, the majority of Umatilla County is composed of rural resource lands. 11 Therefore, because of the route of the existing GTN natural gas pipeline, there is no practicable 12 way to site the natural gas lateral to avoid resource lands.96 Further, it would not be 13 practicable to site the new transmission line to McNary Substation to avoid resource lands. The 14 proposed route minimizes the impact of the proposed transmission line on resource lands 15 because it utilizes the existing infrastructure.97 16 17

(2)d. Availability of existing rights-of-way 18 19 As discussed above, the proposed natural gas pipeline and transmission line would utilize the 20 existing ROW’s. The entire length of the natural gas pipeline would be located within the 21 existing ROW and the transmission line would require only a new 215-foot, 100-feet wide ROW 22 to tie-in the Station to the existing infrastructure. As provided in the ASC, the use of existing 23 rights of ways was a key consideration in the proposed route. The use of the existing ROW’s 24 substantially minimizes the impact of the proposed facilities on agricultural land. 25 26

(2)e. Public health and safety 27 28 For the natural gas pipeline, the existing ROW traverses minimally occupied EFU land, which 29 reduces the potential for public health and safety impacts. Additionally, as explained in the ASC, 30 the impacts to public health and safety would be further minimized because the pipeline would 31 comply with the federal safety natural gas pipeline safety standards of 49 CFR part 192. In 32 addition, the transmission line must comply with the Council’s Siting Standards for Transmission 33 Lines at OAR 345-024-0090, which is discussed in more detail below. 34 35 For the foregoing reasons, the Council finds that the applicant has complied with the 36 requirements of ORS 215.275(2) and that the proposed utilities necessary for public service 37 must be sited on EFU land. 38

94 ASC, Exhibit K, K-12. 95 ASC, Exhibit K, K-13. 96 ASC, Exhibit K, K-13. 97 ASC, Exhibit K, K-13.


1 ORS 215.275(3) Costs associated with any of the factors listed in subsection (2) of this 2 section may be considered, but cost alone may not be the only consideration in determining 3 that a utility facility is necessary for public service. Land costs shall not be included when 4 considering alternative locations for substantially similar utility facilities. The Land 5 Conservation and Development Commission shall determine by rule how land costs may be 6 considered when evaluating the siting of utility facilities that are not substantially similar. 7

8 ORS 215.275(3) provides that cost may be a consideration associated with any of the factors 9 listed in subsection (2) but that it may not be the only consideration. As explained in the ASC, 10 the costs of developing both the natural gas pipeline and transmission line are anticipated to be 11 significantly lower than any alternative alignment, not because the proposed route is on land 12 zoned for EFU but rather because the proposed alignment is direct and located within an 13 existing ROW. Further, the cost savings of the proposed route transmission line are greater than 14 any other alternative alignment because the facility would utilize existing infrastructure and 15 would utilize an existing alignment.98 Consequently, based on the above, the Council finds that 16 cost is not the only consideration associated with any of the factors listed under subsection (2) 17 and the facility complies with ORS 215.275(3). 18 19

ORS 215.275(4) The owner of a utility facility approved under ORS 215.213 (Uses permitted 20 in exclusive farm use zones in counties that adopted marginal lands system prior to 1993) 21 (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal lands 22 counties) (1)(c)(A) shall be responsible for restoring, as nearly as possible, to its former 23 condition any agricultural land and associated improvements that are damaged or 24 otherwise disturbed by the siting, maintenance, repair or reconstruction of the facility. 25 Nothing in this section shall prevent the owner of the utility facility from requiring a bond or 26 other security from a contractor or otherwise imposing on a contractor the responsibility for 27 restoration. 28

29 Under ORS 215.275(4), the owners of a utility facility must be responsible for restoring, as 30 nearly as possible, to its former condition, any agricultural land and associated improvements 31 that are damaged or otherwise disturbed. Perennial provided plans for such restoration in 32 Exhibit W of the ASC, and the Council adopts conditions of approval to ensure site restoration is 33 completed consistent with the requirements of the Council’s standards in Section IV.G of this 34 order. 35 36

ORS 215.275(5) The governing body of the county or its designee shall impose clear and 37 objective conditions on an application for utility facility siting under ORS 215.213 (Uses 38 permitted in exclusive farm use zones in counties that adopted marginal lands system prior 39 to 1993) (1)(c)(A) or 215.283 (Uses permitted in exclusive farm use zones in nonmarginal 40


http://www.oregonlaws.org/ors/215.213









lands counties) (1)(c)(A) to mitigate and minimize the impacts of the proposed facility, if any, 1 on surrounding lands devoted to farm use in order to prevent a significant change in 2 accepted farm practices or a significant increase in the cost of farm practices on the 3 surrounding farmlands. 4

5 ORS 215.275(5) states that the reviewing body shall impose clear and objective conditions of 6 approval on the application to mitigate the impacts. As explained in the ASC, the development 7 of the natural gas pipeline and the transmission line would not cause a significant change in 8 accepted farm practices or a significant increase in the cost of farm practices on surrounding 9 farmlands. The surrounding agricultural lands utilize center pivot irrigation, and accepted farm 10 practices include soil preparation, sowing, fertilizing, pest and weed management, and 11 harvesting. Necessary inputs include labor, fertilizer, electricity and water.99 As described in the 12 ASC, the pipeline would be buried below-ground and would not physically interfere with 13 irrigation, fertilization or crop harvesting on surrounding center-pivot fields.100 In addition, 14 Condition H.3 requires that following construction, all areas temporarily impacted be returned 15 to preconstruction conditions or better. The transmission line would require only three new 16 poles to be located within lands zoned EFU, and the poles would be located at the energy 17 facility site. Therefore, the transmission line will not interfere with the ability to irrigate, fertilize 18 or harvest crops on surrounding center-pivot fields and will not affect the costs of the inputs. 19 The development of the transmission line and gas pipeline, will not impair the ability of the 20 workers to access surrounding farmlands. 21

22 The provisions of ORS 215.275(6) do not apply to the proposed facility. 23 24 Based upon the foregoing analysis, the Council finds that the provisions of ORS 215.275 are met 25 and the natural gas pipeline and proposed transmission towers associated with the line are 26 uses permitted in the exclusive farm use under Section 152.059(C) because they are “utility 27 facilities necessary for public service.” 28 29 UCDC §152.060, Conditional Uses Permitted101 30 31

In an EFU zone the following uses may be permitted conditionally via administrative review 32 (§152.769), subject to the requirements of this section, the applicable criteria in § 152.061, 33 §§ 152.610 through 152.615, 152.617 and §§ 152.545 through 152.562. A zoning permit is 34 required following the approval of a conditional use pursuant to § 152.025. 35

99 ASC, Exhibit K, K-20. 100 ASC, Exhibit K, K-21. 101 Consistent with Goal 3 of the Statewide Planning Goals, Umatilla County has designated the Exclusive

Farm Use zone to preserve agricultural land. Under Goal 3, non-farm uses are permitted within a farm use zone as provided under ORS 215.283. ORS 215.283(2)(g) authorizes “commercial utility facilities for the purpose of generating power for public use by sale” on land in an Exclusive Farm Use zone, subject to the ORS 215.296.



*** 1 2

(F) Commercial utility facilities for the purpose of generating power for public use by sale as 3 provided in § 152.617 (I) (C). 4

5 Section 152.060 lists land uses that may be permitted conditionally via administrative review in 6 the County’s EFU zone. Generally, a “commercial utility facility for the purpose of generating 7 power for public use by sale” is an allowable use, subject to the conditional use standards in 8 Sections 152.610 through 152.615; Section 152.617; and Sections 152.545 through 152.562. 9 The energy facility is proposed to be located in the EFU zone and the energy facility is a 10 proposed commercial utility facility for the purpose of generating power for public use by sale 11 under UCDC 152.060(F). This section applies only to the Perennial Wind Chaser ‘energy facility’ 12 and related energy facility components and it does not apply to the new natural gas pipeline 13 and transmission line, as they are subject to the requirements discussed above. 14 15 UCDC §152.617, Standards for Review: Conditional Uses and Land Use Decisions on EFU and 16 GF Zoned Lands 17 18

(I) EFU AND GF ZONE CONDITIONAL USES 19 *** 20 (C) Commercial Utility Facilities. Commercial utility facilities for the purposes of generating 21 and distributing power for public use by sale. Such facilities shall include, but are not limited 22 to, electrical substations, power trams, water storage tanks, sewage disposal facilities, 23 water treatment facilities, towers or transmitting facilities for radar and television, and 24 dams. This does not include Wind Power Generation Facility (See specific criteria, Section 25 152.616 (HHH), or local distribution lines for sewer, water, gas, telephone, and power and 26 similar minor facilities. These uses are allowed provided that: 27

28 (1) Facility is designed to minimize conflicts with scenic values and adjacent forest, 29 farming and recreational uses as outlined in policies of the Comprehensive Plan; 30

31 The energy facility is a “commercial utility facility for the purposes of generating and 32 distributing power for public use by sale.” The permanent impacts associated with the energy 33 facility are less than 20 acres. As explained in the ASC and discussed below regarding the 34 Council’s Scenic Resources Standard, the proposed energy facility would not significantly impact 35 any identified scenic values and is designed to minimize the visual impact of the energy facility. 36 In addition, Condition J.1 requires the facility to be painted using neutral colors with low 37 reflectivity finish thereby reducing visual contrast and glare. Further, as provided in the 38 Umatilla County Board of County Commissioner comment on the complete application, there 39 are no inventoried Goal 5 significant visual resources in the vicinity of the project site.102 40

102 PERAPPDOC Umatilla county comment


1 There are no forest or recreational uses adjacent to the energy facility and therefore there is no 2 potential for conflict with such uses. The facility’s ability to comply with the Council’s 3 Recreational Standard is discussed in more detail below. 4 5 According to the ASC, the surrounding agricultural land utilizes center pivot irrigation and the 6 accepted farm practices include soil preparation, sowing, fertilizing, pest and weed 7 management, and harvesting. The construction and operation of the proposed energy facility 8 would not change these accepted farm practices or affect the availability or costs of the 9 necessary inputs as the Station would not physically interfere with irrigation, fertilization, or the 10 harvesting of crops on surrounding center-pivot fields. Further, as provided in the ASC, the 11 operations of the Station will not conflict or impact the obtainment or application of fertilizer, 12 irrigation water, pesticides or other necessary crop inputs. As described in the Exhibit Z of the 13 ASC, the cooling tower drift will not impact the quality or productivity of soils on surrounding 14 farmlands as the rate of deposition of salts on the nearest crops is anticipated to be 15 substantially below the threshold at which stress symptoms are demonstrated.103 Therefore, 16 additional inputs will not be necessary because the facility’s cooling tower drift and the 17 associated costs would not increase to due facility operation. 18 19 Based upon the information provided, the Council finds that the energy facility is designed to 20 minimize conflicts with scenic values and adjacent forest, farming and recreational uses. 21 22

(2) Facility be of a size and design to help reduce noise or other detrimental effects when 23 located adjacent to farm, forest and grazing dwellings(s) or a recreational residential 24 zone; 25 26 This provision is not applicable to the proposed energy facility because no farm, forest, 27 grazing dwellings or recreational residential zones are located adjacent to the energy 28 facility site. 29 30 (3) Facility be fenced when located adjacent to dwelling(s) or a Mountain Recreational 31 or Forest Residential Zone and landscaping, buffering and/or screening be provided; 32

33 This provision is not applicable to the proposed energy facility because the facility site is not 34 located adjacent to dwellings or a Mountain Recreational or Forest Residential Zone. 35 Notwithstanding, the applicant proposes to fence the energy facility site. 36 37

(4) Facility does not constitute an unnecessary fire hazard and consideration be made of 38 minimum fire safety measures if located in a forested area, which can include, but is not 39 limited to: 40



1 (a) The site be maintained free of litter and debris; 2 (b) Use of non-combustible or fire retardant treated materials for structures and 3 fencing; 4 (c) Removal of all combustible materials within 30 feet of structures. 5

6 As explained in the ASC, the energy facility would not constitute an unnecessary fire hazard. 7 The energy facility would be kept free of litter and debris and maintained clear of combustible 8 materials within 20 feet of structures, except as necessary for Station operation. The applicant 9 proposes to utilize non-combustible or fire retardant treated materials for structures and 10 fencing as well as include a fire detection and protection system. In addition, Condition M.7, 11 requires the certificate holder to develop and implement a fire protection system. Further, 12 however, the Council adopts the following condition to ensure fire retardant materials are 13 utilized as stated in the ASC: 14 15

Condition E.1: The certificate holder shall utilize fire retardant treated or non-combustible 16 materials for all structures and fencing at the facility. In addition, the site shall be 17 maintained clear of combustible materials within 20 feet of structures, except as necessary 18 for Station operation. The certificate holder shall ensure that trees and other vegetation do 19 not grow to become a fire hazard. 20

21 (5) Major transmission towers, poles and similar gear shall consider locations within or 22 adjacent to existing rights-of way in order to take the least amount of timber land out of 23 production and maintain the overall stability and land use patterns of the area, and 24 construction methods consider minimum a soil disturbance to maintain water quality; 25

26 As discussed above, the transmission line associated with the facility is a use permitted within 27 the EFU zone. Nonetheless, the transmission line will be located within the existing ROW, 28 minimizing soil disturbance and water quality impacts. 29 30

(6) Facility shall not alter accepted timber management operations on adjacent forest 31 land; 32

33 This provision is inapplicable because there is no forest land adjacent to the proposed Station. 34 35

(7) Facility shall adequately protect fish and wildlife resources by meeting minimum 36 Oregon State Department of Forestry regulations; 37

38 This provision is inapplicable because there are no timber, forest or potential forest lands near 39 the energy facility site. 40 41


(8) Access roads or easements be improved to the County’s Transportation Plan 1 standards and follow grades recommended by the Public Works Director 2

3 As explained in the ASC, no temporary access roads will be used for construction of the facility. 4 The Station is to be accessed from Westland Road via Interstate Highway 82 or 84 and a paved 5 loop road, connecting to Westland Road, approximately 24 feet wide is proposed for normal 6 truck and operator vehicle traffic. Further, a spur road, located off of the loop road, is proposed 7 to allow access to structures and equipment.104 The access point and all internal access roads 8 and parking areas are proposed to be paved. As stated in the ASC, the driveway access road 9 would be improved as required to conform to the requirements of the Umatilla County 10 Transportation Plan and would follow the recommendations of the Public Works Director. As 11 discussed in Section IV.B, above, Condition B.6 requires the certificate holder to obtain all 12 necessary state or local permits or approvals required for construction, operation and 13 retirement of the facility, and this includes all necessary access permits. In addition, Conditions 14 M.1, M.2 and M.3, addressed under Section IV.M, below, require the site certificate holder to 15 work with Umatilla County and the county Public Works Department in improving access roads. 16 17

(9) Road construction be consistent with the intent and purposes set forth in the Oregon 18 Forest Practices Act or the 208 Water Quality Program to minimize soil disturbance and 19 help maintain water quality; 20

21 There are no forest lands or natural waterways on the energy facility site. Construction 22 practices to minimize soil disturbances are discussed in consideration of the Council’s Soil 23 Standards section of this froposed order, above. 24 25

(10) Complies with other conditions deemed necessary. 26 27 Perennial agrees to comply with all conditions of the site certificate. 28 29 Based upon the foregoing, the Council finds that the energy facility is a “commercial utility 30 facility for the purpose of generating power for public use by sale” and is therefore an 31 allowable use permitted under Section 152.060. The requirements of § 152.061, §§ 152.610 32 through 152.615, 152.617 and §§ 152.545 through 152.562 are discussed below. 33 34 § 152.061, Standards for all Conditional Uses 35 36

The following limitations shall apply to all conditional uses in an EFU zone. Uses may be 37 approved only where such uses: 38

39

104 ASC, Exhibit B, B-8.


(A) Will not force a significant change in accepted farm or forest practices on surrounding 1 lands devoted to farm or forest use; and 2 (B) Will not significantly increase the cost of accepted farm or forest practices on lands 3 devoted to farm or forest use. 4

5 As explained in the ASC, there are no forest practices conducted at the energy facility site or on 6 surrounding lands; and the surrounding agricultural land utilizes center pivot irrigation, with the 7 accepted farm practices including soil preparation, sowing, fertilizing, pest and weed 8 management, and harvesting. The construction and operation of the proposed energy facility 9 would not change these accepted farm practices or affect the availability or costs of the 10 necessary inputs as the Station would not physically interfere with the ability to irrigate, 11 fertilize, or harvest crops on surrounding center-pivot fields. Further, as stated in the ASC, the 12 the Station operation would not interfere with the obtainment or application of fertilizer, 13 irrigation water, pesticides or other necessary crop inputs and would not affect the costs of the 14 inputs. As described in the Exhibit Z of the ASC, the cooling tower drift would not impact the 15 quality or productivity of soils on surrounding farmlands as the rate of deposition of salts on the 16 nearest crops is anticipated to be substantially below the threshold at which stress symptoms 17 are demonstrated.105 Therefore, no additional inputs would be required. Based upon the 18 information provided, the Council finds that the energy facility would not force a significant 19 change in accepted farm practices on surrounding lands devoted to farm use. 20 21 22 § 152.063, DEVELOPMENT STANDARDS. 23 24

In the EFU zone, the following dimensional and development standards shall apply: 25 26

(A) Minimum parcel frontage. A parcel shall have a minimum street or road frontage of 30 27 feet. 28 29 (B) Front yard setbacks. All buildings shall be set back from front property lines and side or 30 rear property lines adjoining county roads, public roads, state highways, or public or 31 private access easements as follows: 32

33 (1) At least 30 feet from the property line or easement boundary; or 34 (2) At least 60 feet from the center line of the road, highway, or easement, whichever is 35 greater. 36

37 (C) Side and rear yard setbacks. Except as provided in division (B) above, the following 38 standards shall apply for side and rear yard setbacks: 39

40



(1) The minimum yard setback for farm or non-farm dwellings shall be 20 feet. 1 (2) The minimum yard setback for accessory buildings or structures, for both farm and 2 non-farm uses, shall be five feet, except as otherwise provided in applicable conditions of 3 approval, or as constrained by division (D) below. 4 (3) Special minimum yard setbacks may be established for an approved conditional use 5 to protect the public health, safety and welfare and to mitigate possible adverse impacts 6 to adjacent land uses. 7

8 (D) Distance maintained from aggregate mining operations. A dwelling shall not be located 9 within 500 feet of an existing aggregate mining operation unless the owner of the property 10 of the proposed dwelling: 11

12 (1) Obtains a written release from the adjacent mining operation allowing a closer 13 setback; and 14 (2) Waives his or her rights to remonstrate against normal aggregate mining activities 15 allowed by permits issued under this chapter. 16

17 (E) Stream setback. To permit better light, air, vision, stream pollution control, to protect fish 18 and wildlife areas, and to preserve the natural scenic amenities and vistas along the 19 streams, lakes, and wetlands, and to prevent construction in flood prone areas along 20 streams not mapped as part of the National Flood Insurance Program, the following 21 setbacks shall apply: 22 23 24

(1) All sewage disposal installations such as septic tanks and drainfields shall be set back 25 from the mean water line or mark along all streams, lakes or wetlands a minimum of 26 100 feet, measured at right angles to the high water line or mark. In those cases where 27 practical difficulties preclude the location of the facilities at a distance of 100 feet, and 28 the DEQ sanitarian finds that a chosen location will not endanger health, the Planning 29 Director may permit the location of these facilities closer to the stream, lake, or wetland, 30 but in no case closer than 50 feet. 31 32 (2) All structures, buildings or similar permanent fixtures shall be set back from the high 33 water line along all streams, lakes or wetlands a minimum of 100 feet measured at right 34 angles to the high water line or mark, except that this setback can be reduced to 20 feet 35 if all of the following criteria are met: 36

37 (a) The parcel contains one acre or less; and 38 (b) It can be shown with photographs and maps that due to topography the 39 proposed building will be located outside of a flood-prone area; and 40


(c) Location of the proposed building in compliance with the 100 foot setback would 1 be inconvenient and inefficient with respect to the location of existing buildings on 2 the property or due to topographic constraints. 3

4 (F) Other development standards. All development shall be subject to the regulations 5 contained in §§ 152.010 through 152.017, §§ 152.545 through 152.562, and to the 6 exceptions standards of §§ 152.570 through 152.577, including but not limited to: vision 7 clearance, signs, off street parking, access, fences, wetland drainage, and maintenance, 8 removal and replacement of riparian vegetation. 9

10 All buildings and structures in the EFU zone must meet the standards listed in Section 152.063. 11 The energy facility as well as the three new transmission towers to be built within the EFU zone 12 qualify as either “buildings” or “structures” under the definition in UCDC Section 152.003.106 13 However, the natural gas pipeline does not qualify as either a building or a structure because it 14 will be located entirely underground. 15 16

(A) Minimum parcel frontage. A parcel shall have a minimum street or road frontage of 30 17 feet. 18

19 This provision is not applicable because no new parcels would be created as a result of the 20 facility; however, nonetheless, the energy facility site would have a street frontage of 82 feet 21 on Westland road, well beyond the 30-foot requirement of subsection (A).107 22 23

(B) Front yard setbacks. All buildings shall be set back from front property lines and side or 24 rear property lines adjoining county roads, public roads, state highways, or public or 25 private access easements as follows: 26

27 (1) At least 30 feet from the property line or easement boundary; or 28 (2) At least 60 feet from the center line of the road, highway, or easement, whichever is 29 greater. 30

31

106 § 152.003. SETBACK. The open yard space on a lot between any building and a lot line or a line defining an access easement or road ROW. § 152.003. BUILDING. A structure built for the support, shelter or enclosure of person, animals, chattels, or property of any kind. For the purposes of this chapter, a canopy is not a building. § 152.003. STRUCTURE. Something constructed or built and having a fixed base on, or fixed connection to, the ground or another structure. Any constructed or erected object which requires location on the ground or is attached to something located on the ground. Structures include but are not limited to buildings, decks, fences, signs, towers, cranes, flagpoles, antennas, smokestacks, earth formations and overhead transmission lines. Structures do not include paved areas. 107 ASC, Exhibit K, K-23.


(C) Side and rear yard setbacks. Except as provided in division (B) above, the following 1 standards shall apply for side and rear yard setbacks: 2

3 (1) The minimum yard setback for farm or non-farm dwellings shall be 20 feet. 4 (2) The minimum yard setback for accessory buildings or structures, for both farm and 5 non-farm uses, shall be five feet, except as otherwise provided in applicable conditions of 6 approval, or as constrained by division (D) below. 7 (3) Special minimum yard setbacks may be established for an approved conditional use 8 to protect the public health, safety and welfare and to mitigate possible adverse impacts 9 to adjacent land uses. 10

11 As explained in the ASC, the energy facility and three new transmission towers would comply 12 with the above listed setbacks. See Figure K-2 for a visual representation of the facility 13 components. The Council adopts Condition E.2, which requires the certificate holder to design 14 and construct the facility in compliance with the County design requirements as follows: 15 16

Condition E.2 The certificate holder shall design and construct all facility structures and 17 buildings in compliance with the setback requirements of Umatilla County Development 18 Ordinance Section 152.063(B), (C), (E) in effect as of April 03, 2014. 19

20 (D) Distance maintained from aggregate mining operations. A dwelling shall not be located 21 within 500 feet of an existing aggregate mining operation unless the owner of the property 22 of the proposed dwelling: 23

24 (1) Obtains a written release from the adjacent mining operation allowing a closer 25 setback; and 26 (2) Waives his or her rights to remonstrate against normal aggregate mining activities 27 allowed by permits issued under this chapter. 28

29 This provision is not applicable because no dwellings are proposed as part of the facility. 30 31

(E) Stream setback. To permit better light, air, vision, stream pollution control, to protect fish 32 and wildlife areas, and to preserve the natural scenic amenities and vistas along the 33 streams, lakes, and wetlands, and to prevent construction in flood prone areas along 34 streams not mapped as part of the National Flood Insurance Program, the following 35 setbacks shall apply: 36

37 (1) All sewage disposal installations such as septic tanks and drainfields shall be set back 38 from the mean water line or mark along all streams, lakes or wetlands a minimum of 39 100 feet, measured at right angles to the high water line or mark. In those cases where 40 practical difficulties preclude the location of the facilities at a distance of 100 feet, and 41 the DEQ sanitarian finds that a chosen location will not endanger health, the Planning 42


Director may permit the location of these facilities closer to the stream, lake, or wetland, 1 but in no case closer than 50 feet. 2 3 (2) All structures, buildings or similar permanent fixtures shall be set back from the high 4 water line along all streams, lakes or wetlands a minimum of 100 feet measured at right 5 angles to the high water line or mark, except that this setback can be reduced to 20 feet 6 if all of the following criteria are met: 7

8 (a) The parcel contains one acre or less; and 9 (b) It can be shown with photographs and maps that due to topography the 10 proposed building will be located outside of a flood-prone area; and 11 (c) Location of the proposed building in compliance with the 100 foot setback would 12 be inconvenient and inefficient with respect to the location of existing buildings on 13 the property or due to topographic constraints. 14

15 As explained in Exhibit V, the applicant proposes a new septic system and leach field, which 16 would be constructed more than 100 feet from any waterways. The high water line of the 17 closest waterway is over one-quarter mile from the energy facility site, which necessarily is in 18 compliance with the above setback requirement.108 Further, in accordance with subsection (2), 19 all structures, buildings and/or similar permanent fixtures associated with the energy facility 20 would comply with the 100-foot setback requirement, including the transmission towers.109 The 21 Council adopts Condition E.2, above, requiring the certificate holder to construct the facility in 22 compliance with the County design requirement as described in this ordinance. 23 24

(F) Other development standards. All development shall be subject to the regulations 25 contained in §§ 152.010 through 152.017, §§ 152.545 through 152.562, and to the 26 exceptions standards of §§ 152.570 through 152.577, including but not limited to: vision 27 clearance, signs, off street parking, access, fences, wetland drainage, and maintenance, 28 removal and replacement of riparian vegetation. 29

30 The above listed development standards are discussed below. 31 32 B. Light Industrial 33 34 Portions of the reconductored transmission line and up to three new transmission poles will 35 cross about 1600 feet of land zoned light industrial. Transmission facilities are allowed in light 36 industrial zoned lands as conditional uses. 37 38 §152.301, Purpose 39 40

108 ASC, Exhibit K, K-25. 109 ASC, Exhibit K, K-26.


The LI Light Industrial Zone is designed to provide areas for industrial use that are less 1 intensive than heavy industrial uses, and are less offensive to adjacent land uses, and are 2 compatible with certain commercial uses. It is designed to help the county expand and 3 diversify its economic base. The LI Zone is appropriate for areas near major transportation 4 facilities which are generally suited for industry and include highways, railroads, and 5 waterways. 6

7 As explained in the ASC, the portion of the proposed transmission line within the LI-zoned lands 8 runs along Westland Road, near I-82 and existing railroad tracks. Also located near the LI-zoned 9 lands are the HGP and the proposed Lamb Weston industrial food processing plant. The 10 proposed transmission line is consistent with existing land use patterns as there are existing 11 transmission lines in the area.110 12 13 § 152.303, CONDITIONAL USES PERMITTED; GENERAL CRITERIA. 14 15

(A) In a LI Zone, the following uses and their accessory uses are permitted, conditionally, 16 subject to the requirements of §§ 152.610 through 152.616, and upon the issuance of a 17 zoning permit: 18 *** 19

20 (16) Utility facility as provided in § 152.616 (CCC); 21

22 UCDC § 152.003 defines “utility facility” as follows: 23 24

Any major UTILITY FACILITY structure owned or operated by a public, private or cooperative 25 electric, fuel, communication, sewage or water company for the generation, transmission, 26 distribution or processing of its productions or for the disposal of cooling water, waste or by-27 products, and including power transmission lines, major trunk pipelines, power substations, 28 dams, water towers, sewage lagoon, sanitary landfills and similar facilities, but excluding 29 sewer, water, gas, telephone and power local distribution lines and similar minor facilities 30 allowed in any zone. 31

32 Based upon the above definition which specifically includes power transmission lines, the 33 transmission line is a “utility facility” and thus allowed in LI-zoned lands a conditional use. 34 Section 152.616 is discussed below. 35 36

(B) The following general criteria shall be used to review all conditional uses listed in the LI 37 Zone, notwithstanding any other criteria listed in this chapter for a particular use: 38

39 (1) The use will be compatible with other uses allowed in a LI Zone; 40



(2) The use will be in conformance with policies listed in the text of the Comprehensive 1 Plan; 2 (3) The use would not have an adverse impact on existing industrial uses in that it would 3 not be incompatible with the noise, dust, vibrations and odors that may emanate from 4 or be caused by the existing adjacent industrial uses. 5 6

The transmission line would be compatible with the other uses allowed in the LI zone, which 7 include food products manufacturing, trucking terminals, equipment storage yards, welding, 8 etc. Moreover, there are already transmission lines in the LI-zoned area as the applicant is 9 proposing to utilize that existing infrastructure and upgrade the line from a 115kV to a 230kV. 10 While up to three new transmission poles are proposed to cross light industrial zoned lands, no 11 future use of the currently unoccupied lands would be precluded as a result of the construction 12 of the three transmission towers. Further, the operation of the proposed transmission line 13 would not be affected by operation of the existing adjacent industrial uses as the line would not 14 be incompatible with noise, dust, vibrations or odors which are potentially emitted from those 15 facilities. 16 17 Additionally, as discussed further below, the use conforms with the policies of the Umatilla 18 County Comprehensive Plan. 19 20 21 § 152.616, STANDARDS FOR REVIEW OF CONDITIONAL USES AND LAND USE 22 DECISIONS. 23 24

The following standards shall apply for review by the Planning Director or designated 25 planning authority of the specific conditional uses and land use decisions listed below: 26

27 (CCC) Utility facility. 28

29 (1) The facility is designed to minimize conflicts with scenic values and adjacent 30 recreational residential, forest, grazing and farm uses as outlined in policies of the 31 Comprehensive Plan; 32

33 As explained in the ASC, there are no potential conflicts with recreational residential, forest, or 34 grazing uses because there are no recreational residential, grazing, or forest uses adjacent to 35 the portion of the transmission line located within LI-zoned lands. Further, as discussed in 36 greater detail in the Scenic Resources section of this final order, the facility is designed to 37 minimize conflicts with scenic values and adjacent farm uses as the reconductored portions of 38 the transmission line would not be any visibly different from the existing line and the three new 39 proposed transmission poles would be of similar height and appearance to the existing 40 transmission towers in the area, as required by Condition J.3. Therefore, the Council finds that 41 the facility is designed to minimize conflicts with scenic values. 42


1 (2) The facility be of a size and design to help reduce noise or other detrimental effects 2 when located adjacent to recreational residential dwellings; 3

4 This provision is not applicable because there are no recreational residential dwellings adjacent 5 to the portion of the transmission line within the LI-zoned lands. 6 7

(3) The facility may be required to be fenced, landscaped or screened; 8 9 As explained in the ASC, fencing, or screening would be impracticable because of the linear 10 nature of the transmission line. The two new transmission towers west of Westland Road 11 would be located within the existing right of way and constructed in a manner consistent with 12 the existing infrastructure. Further, the single tower to be located east of Westland road would 13 be located between the HGP and the railroad line; therefore, it would be impractical to provide 14 fencing, screening or landscaping. Consequently, Council finds that the proposed transmission 15 line does not require fencing, landscaping or screening beyond that required pursuant to 16 conditions A.9 and D.3. 17 18

(4) The facility does not materially alter the stability of the overall land use pattern of the 19 area; 20 21 The transmission line would not materially alter the overall land use pattern of the area 22 because Perennial proposed utilizing and reconductoring an existing transmission line in the 23 area, with the addition of up to three new poles. The area currently includes industrial facilities, 24 utility power generation facilities and transmission corridors. Therefore, the Council finds that 25 the transmission line will not materially alter the stability of the overall land use pattern of the 26 area. 27 28

(5) The facility does not constitute an unnecessary fire hazard, and consideration be 29 made for minimum fire safety measures which can include, but are not limited to: 30

31 (a) The site be maintained free of litter and debris; 32 (b) Using non-combustible or fire retardant treated materials for structures and 33 fencing; 34 (c) Clearing site of all combustible materials within 30 feet of structures; 35

36 As explained in the ASC, there have been no reported fire hazards associated with the existing 37 transmission infrastructure. Further, the applicant proposes to maintain the transmission line 38 right of way free of litter, debris and combustible materials. In addition, Condition M.7 requires 39 the certificate holder to develop and implement a fire protection system, which must include a 40 fire water system, portable fire extinguishers and smoke detection system. Therefore, the 41 Council finds that the facility does not constitute an unnecessary fire hazard. 42


1 (6) Major transmission tower, poles and similar gear shall consider locations within or 2 adjacent to existing rights of way in order to take the least amount of timberland out of 3 production and maintain the overall stability and land use patterns of the area, and 4 construction methods consider minimum soil disturbance to maintain water quality; 5

6 No timberland is located along the existing transmission line ROW nor would any be affected by 7 the transmission line. The reconductored portions of the line within the LI-zoned lands would 8 utilize the existing infrastructure within the existing ROW111 and the three proposed new 9 transmission poles would be built to minimize soil disturbance as discussed below in relation to 10 the Council’s Soil Protection Standard. The Council finds that the transmission poles would 11 maintain the overall stability and land use patterns of the area. 12 13

(7) The facility shall adequately protect fish and wildlife resources by meeting minimum 14 Oregon State Department of Forestry regulations; 15

16 This provision is inapplicable because there are no timber, forest or potential forest lands near 17 the portion of the transmission line located on LI-zoned lands. 18 19

(8) Access roads or easements be improved to a standard and follow grades 20 recommended by the Public Works Director; 21

22 No improvement to permanent access roads is required because, as explained in the ASC, 23 existing access roads provide sufficient access to permit necessary construction activities 24 associated with reconductoring of the transmission line and the potentially three new poles in 25 the LI-zoned lands.112 26 27

(9) Road construction be consistent with the intent and purposes set forth in the Oregon 28 Forest Practices Act or the 208 Water Quality Program to minimize soil disturbance and 29 help maintain water quality; 30 31

As provided in the ASC, there are no forest lands or natural waterways on the portion of the 32 transmission corridor located on LI-zoned lands. Construction operations would be conducted 33 in compliance with a NPDES1200-C permit and associated Erosion and Sediment Control Plan to 34 minimize soil disturbance and maintain water quality. Condition D.1 requires the site certificate 35 holder to conduct all construction activities in compliance with its 1200-C permit. 36 37

(10) Land or construction clearing shall be kept to a minimum to minimize soil 38 disturbances 39 and help maintain water quality; 40



1 Up to three new transmission towers are proposed to be located in the LI-zone. As provided in 2 the ASC, construction activities would be in compliance with a NPDES 1200-C permit and the 3 related Erosion and Sediment Control Plan. See Condition D.1, which requires construction in 4 compliance with the 1200-C permit. For the reconductoring, approximately 1.38 acres over an 5 estimated 12 restringing sites would be temporarily disturbed. Therefore, the Council finds that 6 the clearing required for the proposed transmission line will be kept to a minimum. 7 8

(11) Complies with other conditions as deemed necessary provided in § 152.615. 9 10 Compliance with the requirements of UCDC § 152.615 is discussed below. 11 12 Based on the foregoing, the Council finds that the transmission line complies with the standards 13 of Section 152.616(CCC). 14 15 § 152.304 LIMITATIONS ON USE. 16 17

(A) All business, commercial and industrial activities, and storage allowed in an LI, Light 18 Industrial, Zone shall be conducted wholly within a building or shall be screened from view 19 from adjacent public roads or surrounding properties in farm, residential or commercial 20 zones, unless the entire activity is conducted more than 500 feet from said surrounding 21 property or road. Outdoor storage of farm and forest products or equipment shall not be 22 subject to this limitation; 23

24 (B) All off-street loading areas shall be screened from view if adjoining properties are in a 25 residential zone; 26

27 (C)All noise, vibration, dust, odor, smoke, appearance or other objectionable factors involved 28 in any activity shall comply with appropriate state and federal regulations 29

30 Subsection (A) above is not applicable to the transmission line because no business, commercial 31 or industrial activities would occur within the LI-zoned areas as a result of the construction and 32 operation of the line. Subsection (B) is also inapplicable because the transmission line would 33 not include any off-street loading areas and there are no residential-zoned properties adjacent 34 to the LI-zoned areas of the proposed transmission line. To comply with (C), as explained in the 35 ASC, and subject to the conditions contained in this final order, the transmission line will 36 comply with all applicable state and federal regulations related to noise, vibration, dust, odor, 37 smoke or appearance. Based upon the above, the Council finds that the line complies with 38 Section 152.304. 39 40 § 152.305 DESIGN REVIEW. 41 42


(A) An application for a zoning permit for a use permitted in § 152.302 of this chapter shall 1 be accompanied by a site plan. 2 3 (B) The Planning Director or his authorized agent shall review the site plan for completeness 4 and compliance with the following requirements: 5

6 (1) The site plan shall consist of the following: 7

8 (a) An accurate map showing property lines, dimensions, and location of buildings on 9 the property, both existing and proposed; 10 (b) Drawn at a scale no smaller than 1" = 100'; 11 (c) Access points to county or state roads; 12 (d) Names of the owner and developer of the site. 13

14 (2) The Planning Director or his authorized agent may require landscaping around the 15 building(s) or the property lines to insure conformance with county policies; 16 17 (3) Applicable standards listed in this chapter for access, parking lots and spaces, off-18 street parking and loading requirements, setbacks, signs, vision clearance, and other 19 standards which may now or hereafter be enacted. 20

21 Prior to construction, the applicant proposes to submit an application for a zoning permit for 22 the portion of the transmission line located within the LI-zoned area and that it would include a 23 site plan. However, as provided in the county’s comments, the certificate holder must obtain a 24 zoning permit for each tax lot where the facility is proposed. Therefore, the Council adopts 25 Condition B.6, which requires the certificate holder to obtain all necessary local permits or 26 approvals required for construction, operation and retirement of the facility. 27 28 No county policies require landscaping around the transmission line in the areas zoned LI. 29 Therefore, the Council does not require any landscaping beyond that necessary pursuant to 30 Conditions A.8 and D.3. Compliance with subsection (3) is discussed in reference to the 31 “General Provisions” section below. 32 33 § 152.306 DIMENSIONAL STANDARDS. 34 35

In an LI zone, the following dimensional standards shall apply: 36 37

(A) Lot size. The minimum lot size shall be one acre unless written proof the Department of 38 Environmental Quality is provided which shows that an approvable subsurface disposal 39 system can be located on less than one acre; 40 (B) Minimum lot width. The minimum average lot width shall be 100 feet with a minimum of 41 25 feet fronting on a dedicated county or public road or state highway; 42


(C) Setback requirements. The minimum setback requirements shall be as follows: 1 2

(1) Front yard: 20 feet, except if the front yard area is used for off-street parking space, 3 then the front yard shall be a minimum of 40 feet; 4 (2) Side yard: 20 feet; 5 (3) Rear yard: 20 feet; 6 (4) The minimum side and rear yard setbacks may be modified upon the request of a 7 property owner, pursuant to § 152.625 through 152.630. Under no circumstance shall 8 the setback requirements be modified when the reduced setback would adjoin 9 residentially zoned property. 10

11 (D) Stream setback. To permit better light, air, vision, stream or pollution control, protect 12 fish and wildlife areas, and to preserve the natural scenic amenities and vistas along the 13 streams, lakes and wetlands, the following setbacks shall apply: 14

15 (1) All sewage disposal installations, such as septic tanks and septic drainfields, shall be 16 setback from the mean high-water line or mark along all streams, lakes or wetlands a 17 minimum of 100 feet, measured at right angles to the high-water line or mark. In those 18 cases where practical difficulties preclude the location of the facilities at a distance of 19 100 feet and the DEQ finds that a closer location will not endanger health, the Planning 20 Director may permit the location of these facilities closer to the stream, lake or wetland, 21 but in no case closer than 50 feet. 22 (2) All structures, buildings or similar permanent fixtures shall be set back from the 23 highwater line along all streams, lakes or wetlands a minimum of 100 feet measured at 24 right angles to the high-water line or mark. 25

26 Subsections (A), (B) and (D)(1), above, are not applicable to the proposed facility because no 27 new lots would be created within the LI-zone and no sewage disposal facilities are to be located 28 in the LI-zoned area. In accordance with subsection (C), the applicant states that the three new 29 transmission towers would be constructed within the existing ROW and would comply with all 30 applicable setback requirements. Regarding subsection (D)(2), the proposed three new 31 transmission towers would be set back more than 100 feet from the high water line or mark of 32 all streams, lakes or wetlands as the closest natural waterway over one-half mile from any 33 transmission tower within the LI zone. Based upon the above, the Council finds that the line 34 complies with UCDC Section 152.306. 35 36 C. Rural Tourist Commercial 37 38 § 152.281 PURPOSE. 39 40

The RTC Rural Tourist Commercial Zone is designed to serve the traveling public along major 41 traffic corridors or at appropriate recreational locations outside unincorporated 42


communities and urban growth boundaries. Facilities may include service stations, eating 1 establishments or over-night accommodations. The RTC Zone is appropriate along major 2 interstate interchanges as discussed in the Comprehensive Plan. This zone is applied to 3 commercial lands outside unincorporated communities and urban growth boundaries for 4 which an exception to Goal 14 has not been approved. 5 6 The intent of the Rural Tourist Commercial Zone is to permit the continuation and expansion 7 of existing uses and to provide rural scale tourism-related employment uses. 8

9 The transmission line ROW and transmission towers cross a small portion of land zoned as Rural 10 Tourist Commercial (RTC) at the southwest corner of Westland Road and Lamb Road. As 11 provided in the ASC, the reconductored transmission line would utilize existing transmission 12 towers on the RTC-zoned land. 13 14 As explained in the ASC, while the RTC zone is located near the Lamb Road I-82 interchange, no 15 developed tourist facilities are located in the area. Further, there would not be a lasting impact 16 on future development because the proposed transmission line would be located within the 17 existing transmission line corridor and utilize the existing transmission towers within the RTC 18 zone. No new transmission towers are proposed within the RTC zone. 19 20 §152.283 CONDITIONAL USES PERMITTED. 21 22

In an RTC Zone, the following uses and their accessory uses are permitted subject to the 23 requirements of §§152.610 through 152.616 and 152.284 through 152.286 of this chapter, 24 and upon the issuance of a zoning permit: 25 *** 26 27 (A) Utility facility as provided in § 152.616 (CCC); 28

29 As discussed in the ASC, the existing transmission line is a utility facility and under UCDC Section 30 152.283 (C), a utility facility is a conditional use permitted in the RTC-zone. However, per 31 Umatilla County Board of County Commissioner’s comment on the complete application, “no 32 land use permit is required to co-locate and upgrade the transmission line.” Nonetheless, the 33 reconductored portions of the transmission line within the RTC-zone satisfy all conditional use 34 requirements as discussed below. 35 36 § 152.616, STANDARDS FOR REVIEW OF CONDITIONAL USES AND LAND USE 37 DECISIONS. 38 39

The following standards shall apply for review by the Planning Director or designated 40 planning authority of the specific conditional uses and land use decisions listed below: 41 42


(CCC) Utility facility. 1 2

(1) The facility is designed to minimize conflicts with scenic values and adjacent 3 recreational residential, forest, grazing and farm uses as outlined in policies of the 4 Comprehensive Plan; 5

6 As explained in the ASC, there are no potential conflicts with recreational residential, forest, or 7 grazing uses because there are no recreational residential, grazing, or forest uses adjacent to 8 the portion of the proposed transmission line located within RTC-zoned lands. Further, the 9 facility is designed to minimize conflicts with scenic values and adjacent farm uses as the 10 reconductored portions of the transmission line would not be any visibly different from the 11 existing line and would utilize existing structures. 12 13

(2) The facility be of a size and design to help reduce noise or other detrimental effects 14 when located adjacent to recreational residential dwellings; 15

16 This provision is not applicable because there are no recreational residential dwellings adjacent 17 to the portion of the transmission line within the RTC-zoned lands. 18 19

(3) The facility may be required to be fenced, landscaped or screened; 20 21 As explained in the ASC, fencing, landscaping, or screening would be impracticable because of 22 the linear nature of the transmission line. Further, the reconductored portion of the 23 transmission line within the RTC-zoned area is located in an area already utilized for a 24 transmission corridor. Therefore, the Council finds that the transmission line does not require 25 fencing, landscaping or screening beyond that required pursuant to Conditions A.8 and D.3. 26 27

(4) The facility does not materially alter the stability of the overall land use pattern of the 28 area; 29

30 The proposed transmission line would not materially alter the overall land use pattern of the 31 area because the applicant is proposing to reconductor an existing transmission line within the 32 RTC-zoned area, so no new transmission towers would be required. Therefore, the Council finds 33 that the transmission line does not materially alter the stability of the overall land use pattern 34 of the area. 35 36

(5) The facility does not constitute an unnecessary fire hazard, and consideration be 37 made for minimum fire safety measures which can include, but are not limited to: 38

39 (a) The site be maintained free of litter and debris; 40 (b) Using non-combustible or fire retardant treated materials for structures and 41 fencing; 42


(c) Clearing site of all combustible materials within 30 feet of structures; 1 2 As explained in the ASC, there have been no reported fire hazards associated with the existing 3 transmission infrastructure and the existing power poles that would be used for the 4 reconductored line are currently constructed of non-combustible or fire retardant treated 5 material.113 In addition, Condition M.6 requires the certificate holder to develop and implement 6 a fire protection system, which must include a fire water system, portable fire extinguishers and 7 smoke detection system. Therefore, the Council finds that the line does not constitute an 8 unnecessary fire hazard. 9 10

(6) Major transmission tower, poles and similar gear shall consider locations within or 11 adjacent to existing rights of way in order to take the least amount of timberland out of 12 production and maintain the overall stability and land use patterns of the area, and 13 construction methods consider minimum soil disturbance to maintain water quality; 14

15 As explained the ASC, in the RTC zone, the transmission line would be located within the 16 existing transmission line ROW and would utilize existing transmission towers, which eliminates 17 the potential for soil disturbance and protects water quality. Therefore, the Council finds that 18 the transmission line would maintain the overall stability and land use patterns of the area. 19 20

(7) The facility shall adequately protect fish and wildlife resources by meeting minimum 21 Oregon State Department of Forestry regulations; 22

23 This provision is inapplicable because there are no timber, forest or potential forest lands near 24 the portion of the transmission line located on RTC-zoned lands. 25 26

(8) Access roads or easements be improved to a standard and follow grades 27 recommended by the Public Works Director; 28

29 No improvement to permanent access roads is required because, as explained in the ASC, 30 existing access roads provide sufficient access to the transmission line corridor. 31 32

(9) Road construction be consistent with the intent and purposes set forth in the Oregon 33 Forest Practices Act or the 208 Water Quality Program to minimize soil disturbance and 34 help maintain water quality; 35

36 As provided in the ASC, there are no forest lands or natural waterways on the portion of the 37 transmission corridor located on RTC-zoned lands and no road construction would take place 38 within the RTC-zone. 39 40



(10) Land or construction clearing shall be kept to a minimum to minimize soil 1 disturbances and help maintain water quality; 2

3 No new transmission towers would be constructed within the RTC zone. Therefore, no ground-4 breaking activities would occur within the RTC-zone. 5 6

(11) Complies with other conditions as deemed necessary provided in § 152.615. 7 8 Compliance with the requirements of UCDC § 152.615 is discussed below. 9 10 Based on the foregoing, the Council finds that the transmission line complies with the standards 11 of Section 152.616(CCC). 12 13 § 152.284 LIMITATIONS ON USES. 14 15

In the RTC Zone, the following limitations on uses shall apply: 16 17

(A) Outside storage areas shall be screened with a site-obscuring fence so that the area shall 18 not be exposed to view from the traveling public and surrounding properties; 19 20 (B) Storage of scrap or salvage materials shall be prohibited. 21 22 (C)Except as provided in Paragraphs D and E of this Section, buildings shall not exceed 23 3,500 square feet of floor space 24 25 (D) Motels and hotels that existed on July 1, 2005 may expand up to 35 units or up to 50% of 26 the number of existing units, whichever is larger, with no limitation on square footage. 27 28 (E) Structures that existed on July 1, 2005 may expand to a building size of 4,500 square feet 29 or to a size that is 50% larger than the building size that existed on July 1, 2005, whichever is 30 larger. 31 32 (F) Notwithstanding the size limitations for structures contained in this chapter, a lawfully 33 approved or lawfully constructed structure existing as of July 1, 2005 shall not be considered 34 a non-conforming use, and in the event the structure is destroyed or substantially damaged, 35 the structure may be restored to its prior lawfully approved size. 36

37 As explained in the ASC, there would be no storage, including storage of scrap or salvage 38 materials, within the portion of the transmission line located in the RTC-zoned lands. 39 Subsections (C)—(F) are not applicable because there would be no buildings constructed within 40 the portion of the transmission line located within the RTC-zoned lands. Based on the 41


foregoing, the Council finds that the transmission line complies with use limitations of UCDC 1 Section 152.284. 2 3 § 152.285 DESIGN REVIEW. 4 5

(A) An application for a zoning permit for a use permitted in § 152.302 of this chapter shall 6 be accompanied by a site plan. 7 8 (B) The Planning Director or his authorized agent shall review the site plan for completeness 9 and compliance with the following requirements: 10

11 (1) The site plan shall consist of the following: 12

13 (a) An accurate map showing property lines, dimensions, and location of buildings on 14 the property, both existing and proposed; 15 (b) Drawn at a scale no smaller than 1" = 100'; 16 (c) Access points to county or state roads; 17 (d) Names of the owner and developer of the site. 18

19 (2) The Planning Director or his authorized agent may require landscaping around the 20 building(s) or the property lines to insure conformance with county policies; 21 22 (3) Applicable standards listed in this chapter for access, parking lots and spaces, off-23 street parking and loading requirements, setbacks, signs, vision clearance, and other 24 standards which may now or hereafter be enacted. 25

26 As stated above, consistent with the SAG recommendation, no zoning permit would be 27 required for the portion of the transmission line within the RTC zone because it is co-located. 28 Therefore, this requirement is not applicable. Nonetheless, Condition B.6 requires the 29 certificate holder to obtain all necessary state or local permits or approvals required for 30 construction, operation and retirement of the facility. 31 32 § 152.286 DIMENSIONAL STANDARDS 33 34 In an RTC zone, the following dimensional standards shall apply 35 36

(A) Lot size. The minimum lot size shall be one acre unless written proof the Department of 37 Environmental Quality is provided which shows that an approvable subsurface disposal 38 system can be located on less than one acre; 39 40 (B) Minimum lot width. The minimum average lot width shall be 100 feet with a 41 minimum of 25 feet fronting on a dedicated county or public road or state highway; 42


1 (C) Setback requirements. No building shall be located closer than 20 feet from a property 2 line, except on the street/road side of a corner lot used for a side yard the setback shall be 3 55 feet from the center line of the road, highway, or easement, or 25 feet from the property 4 line, whichever is greater. The minimum side and rear yard setbacks may be modified upon 5 the request of a property owner, pursuant to § 152.625 through 152.630. Under no 6 circumstance shall the setback requirements be modified when the reduced setback would 7 adjoin residentially zoned property. 8

9 (D) Stream setback. To permit better light, air, vision, stream or pollution control, protect 10 fish and wildlife areas, and to preserve the natural scenic amenities and vistas along the 11 streams, lakes and wetlands, the following setbacks shall apply: 12

13 (1) All sewage disposal installations, such as septic tanks and septic drainfields, shall be 14 setback from the mean high-water line or mark along all streams, lakes or wetlands a 15 minimum of 100 feet, measured at right angles to the high-water line or mark. In those 16 cases where practical difficulties preclude the location of the facilities at a distance of 17 100 feet and the DEQ finds that a closer location will not endanger health, the Planning 18 Director may permit the location of these facilities closer to the stream, lake or wetland, 19 but in no case closer than 50 feet. 20 21 (2) All structures, buildings or similar permanent fixtures shall be set back from the 22 highwater line along all streams, lakes or wetlands a minimum of 100 feet measured at 23 right angles to the high-water line or mark. 24

25 Subsections (A) and (B) are not applicable because no new lots would be created as part of the 26 reconductored transmission line in the RTC zone. Subsection (C) is not applicable because no 27 new transmission towers or other buildings would be constructed within the RTC-zoned lands. 28 Lastly, regarding subsection (D), no sewage disposal facilities or transmission towers, buildings 29 or structures, would be constructed within the RTC-zoned lands and the existing towers in the 30 zone are already located more than 100 feet from any streams, lakes or wetlands. Therefore, 31 the Council finds that the line complies with the dimensional standards contained at UCDC 32 Section 152.286. 33 34 D. Conditional Use Permit Restrictions for Exclusive Farm Use, Light Industrial and Rural 35 Tourist Commercial Zoned Areas 36 37 § 152.615, Conditional Use Permit Restrictions 38 39

In addition to the requirements and criteria listed in this subchapter, the Hearings Officer, 40 Planning Director or the appropriate planning authority may impose the following 41 conditions upon a finding that circumstances warrant such additional restrictions: 42


1 (A) Limiting the manner in which the use is conducted, including restricting hours of 2 operation and restraints to minimize such environmental effects as noise, vibration, air 3 pollution, water pollution, glare or odor; 4 5 (B) Establishing a special yard, other open space or lot area or dimension; 6 7 (C) Limiting the height, size or location of a building or other structure; 8 9 (D) Designating the size, number, location and nature of vehicle access points; 10 11 (E) Increasing the required street dedication, roadway width or improvements within the 12 street right of way; 13 14 (F) Designating the size, location, screening, drainage, surfacing or other improvement of a 15 parking or loading area; 16 17 (G) Limiting or otherwise designating the number, size, location, height and lighting of signs; 18 19 (H) Limiting the location and intensity of outdoor lighting and requiring its shielding; 20 21 (I) Requiring diking, screening, landscaping or other methods to protect adjacent or nearby 22 property and designating standards for installation and maintenance. 23 24 (J) Designating the size, height, location and materials for a fence; 25 26 (K) Protecting and preserving existing trees, vegetation, water resources, wildlife habitat, or 27 other significant natural resources; 28 29 (L) Parking area requirements as listed in §§ 152.560 through 152.562 of this chapter. 30

31 EFU, LI and RTC- zoned areas require compliance with other conditions as deemed necessary 32 and provided in UCDC Section152.615, which states that conditions may be imposed “upon a 33 finding that circumstances warrant such additional restrictions.” Section 152.615 includes a list 34 of discretionary conditions and does not contain substantive standards. The county 35 recommended minimal facility conditions in its report on the complete application, and those 36 recommendations have been incorporated into conditions throughout this final order, as 37 applicable. 38 39 E. Zoning Permit 40 41 § 152.612 PROCEDURE FOR TAKING ACTION ON A CONDITIONAL USE OR LAND 42


USE DECISION APPLICATION. 1 2

(D) An applicant granted a conditional use permit or land use decision must obtain a County 3 zoning permit for each tax lot before commencing construction. 4

5 UCDC Section 152.612(C) provides that a conditional use permit “will not be approved unless 6 the proposed use of the land will be in conformance with the County Comprehensive Plan.” 7 Applicable policies of the UCCP are discussed below. UCDC Section 152.612(D) provides that an 8 applicant granted a conditional use permit must obtain a County Zoning Permit before 9 commencing construction. If the Council approves a site certificate for the proposed facility, 10 then the County must issue a conditional use permit for the energy facility site in accordance 11 with ORS 469.401(3), and this ordinance would require that the certificate holder obtain a 12 zoning permit for each tax lot where new construction would occur. The County has defined 13 “zoning permit” in UCDC Section 152.003 as follows: 14 15

ZONING PERMIT. An official finding that a planned use of a property, as indicted by an 16 application, complies with the requirements of this chapter or meets the special conditions 17 of a variance or conditional use permit (see also DEVELOPMENT PERMIT) 18

19 For the reasons described throughout this section, the Council finds that the facility complies 20 with the requirements of the applicable County ordinances contained in the UCDC, Chapter 21 152. 22 23 F. General Provisions 24 25 § 152.010 ACCESS TO BUILDINGS; PRIVATE DRIVEWAYS AND EASEMENTS. 26 27

(A) Every building hereafter erected or moved shall be on a lot that abuts a public street or a 28 recorded easement. All structures shall be so located on lots as to provide safe and 29 convenient access for servicing, fire protection, and required off-street parking. In 30 commercial and industrial zones, access points shall be minimized. To accomplish this, 31 access shall be limited to one every 200 feet and shall be reviewed during the design review 32 stage or the conditional use hearing. If necessary to accomplish this, driveways may be 33 shared between two lots. 34 35 (B) Private driveways and easements that enter onto a public or county road or state or 36 Federal highway shall be constructed of at least similar if not the same material as the 37 public or county road or state or federal highway to protect the edge of the road from rapid 38 deterioration. The improvements shall extend at least 25 feet back from the edge of the 39 existing travel lane surface. 40

41


UCDC Section 152.010 addresses access to buildings and structures and private driveways and 1 easements that enter onto a public or county road or state or federal highway. 2 3 The western edge of the energy facility site abuts Westland Road, a public road. To the north of 4 the energy facility site’s access point on Westland Road, the closest access point is the 5 Hermiston Generating Plant driveway, located over 600 feet away. To the south of the energy 6 facility site’s access point on Westland Road, the closest access point is Westport Lane, again 7 located over 600 feet away. All new proposed transmission towers would be constructed on tax 8 lots that abut public streets and, as stated in the ASC, would be constructed so as to be safely 9 and conveniently accessible for maintenance, servicing and fire protection. As discussed 10 previously, the natural gas pipeline is not a “structure” or a “building”, and therefore 11 subsection (A) is not applicable to the gas line. 12 13 Regarding Subsection (B), the driveway access to Westland Road would be fully paved and 14 therefore constructed of at least similar if not the same material as Westland Road. Subsection 15 (B) is not applicable to the natural gas pipeline or the transmission line because no new private 16 driveways or easements would be constructed to access any roadways from the natural gas 17 pipeline or transmission line.114 18 19 Based on the foregoing, the Council finds that the energy facility and transmission line would 20 comply with the requirements of UCDC Section 152.010. 21 22 § 152.011 VISION CLEARANCE. 23

24 Vision clearance areas shall be provided with the following distance establishing the size of 25 the vision clearance area: 26 27 (A) In an Agricultural or Residential Zone, the minimum distance shall be 30 feet or, at 28 intersections including an alley, 10 feet; 29 30 (B) In all other zones the minimum distance shall be 15 feet or, at intersections including an 31 alley, 10 feet, except when the angle of intersection between streets is less than 30 degrees, 32 the distance shall be 25 feet; 33 34 (C) The vision clearance area shall not contain any planting, wall, structure, or obstruction of 35 any kind exceeding two and one-half feet in height measured from the grade of the street 36 centerline. 37

38 At the access point to the energy facility site, Westland Road is flat and straight with clear 39 visibility. As stated in the ASC, the vision clearance would be maintained free of any visual 40



obstructions and the existing railroad crossing barrier is more than 30 feet from the access 1 point and would not obstruct the view of drivers entering or exiting the energy facility site. 2 Section 152.011 is not applicable to the natural gas pipeline or the transmission line because no 3 new roadway access point would be constructed in conjunction with these facilities.115 4 5 Based upon the foregoing, the Council finds that the proposed energy facility complies with the 6 requirements of UCDC Section 152.011. 7 8 § 152.016 RIPARIAN VEGETATION; WETLAND DRAINAGE. 9 10

(A) The following standards shall apply for the maintenance, removal and replacement of 11 riparian vegetation along streams, lakes and wetlands which are subject to the provisions 12 of this chapter: 13

14 (1) No more of a parcel's existing vegetation shall be cleared from the setback and 15 adjacent area than is necessary for uses permitted with a zoning permit, accessory 16 buildings, and/or necessary access. 17 18 (2) Construction activities in and adjacent to the setback area shall occur in such a 19 manner so as to avoid unnecessary excavation and/or removal of existing vegetation 20 beyond that required for the facilities indicated in subdivision (A)(1) above. Where 21 vegetation removal beyond that allowed in subdivision (A)(1) above cannot be avoided, 22 the site shall be replanted during the next replanting season to avoid water 23 sedimentation. The vegetation shall be of indigenous species in order to maintain the 24 natural character of the area. 25 26 (3) A maximum of 25% of existing natural vegetation may be removed from the setback 27 area. 28 29 (4) The following uses and activities are excepted from the above standards: 30

31 (a) Commercial forest practices regulated by the Oregon Forest Practices Act, being 32 ORS 527.610 et seq.; 33 (b) Vegetation removal necessary to provide water access for a water dependent 34 use; 35 (c) Removal of dead or diseased vegetation that poses a safety or health hazard; 36 (d) Removal of vegetation necessary for the maintenance or replacement of 37 structural shoreline stabilization. 38

39



(5) In cases of zoning permits, land use actions which require site plan review or 1 conditions for approval, and which are subject to provisions of this division, the review 2 body shall prepare findings and address the maintenance, removal and replacement of 3 riparian vegetation. 4

5 The applicant identified streams and wetlands within the site boundary in Exhibit J of the ASC. 6 As explained in that Exhibit, the above provisions are not applicable to the energy facility and 7 the natural gas pipeline because there is no existing riparian vegetation along streams, lakes or 8 wetlands in the setback area or elsewhere on the energy facility site and natural gas pipeline 9 right of way. Additionally, no riparian vegetation would be removed at the energy facility site or 10 the natural gas pipeline right of way. As stated in the ASC, no riparian vegetation would be 11 removed in the transmission line ROW because the transmission line would use existing towers. 12 Further, no access to the Umatilla River riparian area is anticipated because the proposed 13 transmission, while upgrading the line, would utilize the existing towers that are already 14 established and set back from the riparian area.116 15 16

(B) Minor drainage improvements necessary to ensure effective drainage on surrounding 17 agricultural lands shall be coordinated with the Oregon Department of Fish and Wildlife 18 and Soil and Water Conservation District. Existing drainage ditches may be cleared to 19 original specifications without review. 20

21 As above, Subsection (B) is not applicable to the energy facility site because surrounding 22 agricultural lands are engaged in dryland farming, and, according to the applicant, the 23 topography indicates that such lands would drain away from the energy facility site. 24 Additionally, this provision is not applicable to the transmission line or natural gas pipeline 25 because neither are anticipated to alter drainage patterns on surrounding agricultural lands.117 26 However, to the extent that minor drainage improvements are required, the Council adopts the 27 following condition: 28 29

Condition E.3: The certificate holder shall consult with the Oregon Department of Fish and 30 Wildlife and the local Soil and Water Conservation District for any minor drainage 31 improvements necessary to ensure effective drainage on surrounding agricultural lands. 32

33 Based on the foregoing, and subject to compliance with the site certificate condition, the 34 Council finds that the facility complies with the requirements of UCDC Section 152.016. 35 36 §152.017 CONDITIONS FOR DEVELOPMENT PROPOSALS. 37 38

(A) The proposed use shall not impose an undue burden on the public transportation system. 39 Any increase meeting the definition of significant change in trip generation constitutes an 40



undue burden. 1 2 (B) For developments likely to generate a significant increase in trip generation, applicant 3 shall be required to provide adequate information, such as a traffic impact study or traffic 4 counts, to demonstrate the level of impact to the surrounding system. The scope of the 5 impact study shall be coordinated with the providers of the transportation facility. Proposals 6 that meet the requirements in §152.019(B) are subject to §152.019(C), Traffic 7 Impact Analysis Requirements. 8

9 10

(C) The applicant or developer may be required to mitigate impacts attributable to the 11 project. Types of mitigation may include such improvements as paving, installation or 12 contribution to traffic signals, construction of sidewalks, bikeways, accessways or paths. The 13 determination of impact or effect should be coordinated with the providers of affected 14 transportation facilities. 15 16 (D) Dedication of land for roads, transit facilities, sidewalks, bikeways, paths, or accessways 17 may be required where the existing transportation system will be impacted by or is 18 inadequate to handle the additional burden caused by the proposed use. 19

20 “Significant change in trip generation” is defined in UCDC § 152.003 as follows: 21 22

SIGNIFICANT CHANGE IN TRIP GENERATION. A change in the use of the property, including 23 land, structures or facilities, or an expansion of the size of the structures or facilities causing 24 an increase in the trip generation of the property exceeding: (1) for gravel surfaced County 25 roads, 30 vehicles of less than 10,000 pounds Gross Vehicle Weight (GVW) and/or 20 26 vehicles of greater than 10,000 pounds GVW; (2) for paved County roads, 75 vehicles of less 27 than 10,000 GVW; and (3) for State paved Highways, 150 vehicles of 10,000 pounds GVW or 28 less and/or 100 vehicles of greater than 10,000 pounds GVW. 29

30 The applicant provided information regarding traffic impacts in Exhibit U of the ASC. As 31 explained in that Exhibit, the energy facility site would be accessed by Westland Road, a paved 32 county road. As explained in the Traffic Impact Analysis included in Exhibit U, all of the study 33 intersections and critical movements would continue to operate acceptably during the weekday 34 morning and evening peak hours. During the peak of construction, the projected construction 35 effort is estimated to generate approximately 196 trips during each of the weekday morning 36 and evening peak hours. The applicant anticipates that during operation, the facility will 37 generate approximately 20 daily one-way vehicle trips. Eight full time employees are expected 38 to generate 16 daily trips, with a daily average of two deliveries or visitors generating an 39 additional four daily trips.118 Based on the above daily average trips, the facility will not pose an 40



undue burden on the public transportation system. As stated in their comment, the County 1 supports the applicant’s traffic analysis. The natural gas pipeline and transmission line would 2 not generate daily traffic and would only require intermittent access for maintenance and 3 repairs. To minimize traffic impacts, the Council adopts conditions M.1, M.2, and M.3, discussed 4 below in Section IV.M, which require the site certificate holder to work with Umatilla County 5 and the county Public Works Department. 6 7 Based on the foregoing, and subject to compliance with the site certificate condition, the 8 Council finds that the facility complies with the requirements of UCDC Section 152.017. 9 10 § 152.018 ACCESS MANAGEMENT AND STREET CONNECTIVITY 11 12

(A) The intent of this code is to manage access to land development while preserving the 13 flow of traffic in terms of safety, capacity, functional classification, and level of service. 14 Major roadways, including highways, arterials, and collectors serve as the primary network 15 for moving people and goods. These transportation corridors also provide access to 16 businesses and homes and have served as the focus for commercial and residential 17 development. If access points are not properly designed, these roadways will be unable to 18 accommodate the needs of development and retain their primary transportation function. 19 This code balances the right of reasonable access to private property with the right of the 20 citizens of Umatilla County and the State of Oregon to safe and efficient travel. To achieve 21 this policy intent, state and local roadways have been categorized in the Transportation 22 System Plan by function and classified for access purposes based upon their level of 23 importance and function. Regulations have been applied to these roadways for the purpose 24 of reducing traffic accidents, personal injury, and property damage attributable to poorly 25 designed access systems, and to thereby improve the safety and operation of the roadway 26 network. This will protect the substantial public investment in the existing transportation 27 system and reduce the need for expensive remedial measures. These regulations also further 28 the orderly layout and use of land, protect community character, and conserve natural 29 resources by promoting well-designed road and access systems and discouraging the 30 unplanned subdivision of land. 31 32 (B) This section shall apply to all arterials and collectors within the County and to all 33 properties that abut these roadways. 34 35 (C) This section is adopted to implement the access management policies of the County as 36 set forth in the Transportation System Plan. 37 38 (D) Proposed access within the I-82/US 730 Interchange Management Area Plan (IAMP) 39 Management Area, shall be consistent with Section 7, Access Management Plan, of the 40 IAMP. 41 42


(E) Corner Clearance 1 2

(1) Corner clearance for connections shall meet or exceed the minimum connection 3 spacing requirements for that roadway. 4 5 (2) New connections shall not be permitted within the functional area of an intersection 6 as defined by the connection spacing standards of this ordinance, unless no other 7 reasonable access to the property is available. 8 (3) Where no other alternatives exist, the County may allow construction of an access 9 connection along the property line farthest from the intersection. In such cases, 10 directional connections (i.e. right in/out, right in only, or right out only) may be required. 11

12 The energy facility site would comply with the corner clearance standards of the Umatilla 13 County Transportation Plan, as the proposed driveway for the energy facility site would be 14 approximately 250 feet south of the nearest driveway. To the north, the nearest driveway is 15 approximately 670 feet from the proposed site access and to the south the nearest driveway is 16 located approximately 580 feet from the proposed site-access driveway. The above provisions 17 do not apply to the natural gas pipeline or transmission line because they would generate 18 regular or frequent traffic and do not require additional access points.119 19 20

(F) Joint Use Driveways and Cross Access. 21 22

(1) Adjacent commercial or office properties identified as major traffic generators 23 (generating more than 400 daily trips as defined by the Institute of Transportation 24 Engineers Trip Generation Manual), shall provide a cross access drive and pedestrian 25 access to allow circulation between sites. 26 27 (2) A system of joint use driveways and cross access easements shall be established 28 wherever feasible and shall incorporate the following: 29

30 (a) A continuous service drive or cross access corridor extending the entire length of 31 each block served to provide for driveway separation consistent with the access 32 management classification system and standards. 33 (b) A design speed of 10 mph and a maximum width of 20 feet to accommodate two-34 way travel aisles designated to accommodate automobiles, service vehicles, and 35 loading vehicles 36 (c) Stub-outs and other design features to make it visually obvious that the abutting 37 properties may be tied in to provide cross-access via a service drive. 38 (d) A unified access and circulation system plan for coordinated or shared parking 39 areas is encouraged. 40



1 (3) Shared parking areas shall be permitted a reduction in required parking spaces if 2 peak demands do not occur at the same time periods. 3 4 (4) Pursuant to this section, property owners shall: 5

6 (a) Record an easement with the deed allowing cross access to and from other 7 properties served by the joint use driveways and cross access or service drive; 8 (b) Record an agreement with the deed that remaining access rights along the 9 roadway will be dedicated to Umatilla County and pre-existing driveways will be 10 closed and eliminated after construction of the joint-use driveway; 11 (c) Record a joint maintenance agreement with the deed defining maintenance 12 responsibilities of property owners. 13

14 (5) Umatilla County may reduce required separation distance of access points where 15 they prove impractical, provided all of the following requirements are met: 16

17 (a) Joint access driveways and cross access easements are provided in accordance 18 with this section. 19 (b) The site plan incorporates a unified access and circulation system in accordance 20 with this section. 21 (c) The property owner enters into a written agreement with the county, recorded 22 with the deed, that pre-existing connections on the site will be closed and eliminated 23 after construction of each side of the joint use driveway (6) Umatilla County may 24 modify or waive the requirements of this section where the characteristics or layout 25 of abutting properties would make the development of a unified or shared access 26 and circulation system impractical. 27

28 The above provisions are not applicable to the energy facility site because there are no major 29 traffic generators adjacent to the site. Additionally, these provisions are not applicable to the 30 natural gas pipeline or transmission line because there are no major traffic generators adjacent 31 and these facilities would not generate more than minimal, intermittent traffic demand. 32 33

(G) Access Connection and Driveway Design. 34 35

(1) Driveways shall meet the following standards: 36 37

(a) If the driveway is a one way in or one way out drive, then the driveway shall be a 38 minimum width of 10 feet and shall have appropriate signage designating the 39 driveway as a one way connection. 40 (b) For two-way access, each land shall have a minimum width of 10 feet. 41

42


(2) Driveway approaches must be designed and located to provide an exiting vehicle with 1 an unobstructed view. Construction of driveways along acceleration or deceleration 2 lanes and tapers shall be avoided due to the potential for vehicular weaving conflicts. 3 (3) The length of driveways shall be designed in accordance with the anticipated storage 4 length for entering and exiting vehicles to prevent vehicles from backing into the flow of 5 traffic on the public street or causing unsafe conflicts with on-site circulation. 6

7 As explained in the ASC, the vehicle access point would be sized with two lanes at least 10 feet 8 wide to allow for vehicles and truck traffic to enter and exit the site. Condition M.1, requires 9 that all truck movements to the Station be directed to enter the site from the north as the site-10 access driveway cannot be designed to accommodate truck movements. Further, as stated in 11 the ASC, the existing clear sight lines at the access point would be maintained providing exiting 12 vehicles with unobstructed views of traffic along Westland Road. There are no acceleration or 13 deceleration lanes in the vicinity of the access point.120 This provision is not applicable to the 14 natural gas pipeline or transmission line because no new driveway access points are required. 15 16

(H) Nonconforming Access Features. 17 18

(1) Legal access connections in place as of September 15, 2002 that do not conform with 19 the standards herein are considered nonconforming features and shall be brought into 20 compliance with applicable standards under the following conditions: When new access 21 permits are requested; Change in use, enlargements, or improvements that will increase 22 trip generation. 23

24 This provision is not applicable because there are no existing non-conforming access 25 connections. 26 27 Based on the foregoing, the Council finds that the facility complies with the requirements of 28 UCDC Section 152.018. 29 30 § 152.545 ZONING PERMIT REQUIRED TO ERECT, MOVE, OR ALTER SIGNS; 31 EXEMPTIONS; PERMITTED SIGNS 32 33

(A) No sign shall hereafter be erected, moved, or structurally altered without a zoning 34 permit, except for a Type 1 and Type 3 sign, and without being in conformity with the 35 provisions of this chapter. Official signs of the state, county or municipalities are exempt 36 from all provisions of this chapter. All signs shall be on the same lot as the subject matter of 37 the sign, except as specifically allowed otherwise. 38 39



(B) Allowed signs in the various zones are indicated by the following tables (for types of 1 signs, see § 152.546): 2

3 Signage for the energy facility site would be limited to directional signs for deliveries and 4 general site circulation. As provided in the ASC, signage at the natural gas pipeline and 5 transmission line would be limited to meeting public safety notice requirements. To ensure 6 signage is limited as provided in the ASC, the Council adopts the following condition: 7 8

Condition E.4: To reduce the visual impacts of the facility, the certificate holder shall: 9 10

(a) Not allow any advertising to be used on any part of the facility; 11 (b) Use only those signs required for facility safety, required by law or otherwise 12 required by this site certificate, except that the certificate holder may erect 13 directional signage for deliveries and site circulation; 14 (c) Design signs in accordance with Umatilla County design requirements for signs as 15 described in UCDC Section 152.545; and 16 (d) Maintain any signs allowed under this condition in good repair. 17

18 § 152.560 OFF-STREET PARKING REQUIREMENTS 19 20

(A) Each use shall provide the following minimum off-street parking spaces. Each parking 21 space shall be a minimum of nine feet wide and 20 feet in length. 22 23 (B) Off-street parking requirements. 24 *** 25

26 (10) Industrial uses: one space per 200 square feet of public space, plus one space per 27 employee. 28

29 (11) Conditional uses: additional spaces may be required by the Hearings Officer in the 30 approval of a conditional use. 31

32 The energy facility will meet the required parking requirements for industrial uses. The 33 applicant anticipates the Station would require 6 to 8 full time permanent staff and as provided 34 in the ASC, the parking areas would include spaces for at least 10 standard cars and one 35 handicapped vehicle. No parking spaces are required at the natural gas pipeline or the 36 transmission line as there will be no full time employees and no public spaces. 37 38 § 152.562 ADDITIONAL OFF-STREET PARKING AND LOADING REQUIREMENTS 39 40

(A) Should the owner or occupant of a lot or building change the use to which the lot or 41 building is put, thereby increasing off-street parking or loading requirements, it shall be 42


a violation of this chapter to begin such altered use until the required increase in off street 1 parking or loading is provided; 2

3 As explained in the ASC, parking facilities for the energy facility would be developed during 4 construction and the facility would not begin operations until such parking facilities are 5 provided. This provision is not applicable to the natural gas pipeline or transmission line 6 because parking is not required as neither the pipeline nor transmission lines are buildings and 7 neither would support employees. 8 9

(B) Requirements for types of buildings and uses not specifically listed herein shall be 10 determined by the Planning Commission or Hearings Officer, based upon the 11 requirements of comparable uses listed; 12

13 As discussed above, based upon the information in the ASC, the proposed facility satisfies this 14 standard as sufficient parking for industrial facilities is proposed. 15 16

(C) In the event several uses occupy a single structure or parcel of land, the total 17 requirements for off-street parking shall be the sum of the requirements of the several uses 18 computed separately; 19

20 As discussed above, sufficient parking would be provided at the energy facility site to meet the 21 facility’s needs. 22 23

(D) Owner of two or more uses, structures or parcels of land may agree to utilize jointly the 24 same parking and loading spaces when the hours of operation do not overlap, provided that 25 satisfactory legal evidence is presented to the Planning Director in the form of deeds, leases, 26 or contracts to establish the joint use; 27

28 This provision is not applicable because no joint parking or loading facilities are to be developed 29 as part of the project. 30 31

(E) Off-street parking spaces for dwellings shall be located on the same lot with the dwelling. 32 Other required parking spaces shall be located no farther than 500 feet from the building or 33 use they are required to serve, measured in a straight line from the building; 34

35 This provision is inapplicable because the applicant is not proposing dwellings as part of the 36 project. 37 38

(F) Required parking spaces shall be available for the parking of operable passenger 39 automobiles of residents, customers, patrons and employees only, and shall not be used 40 for storage of vehicles or materials or for the parking of trucks used in conducting the 41 business or use; 42


1 As stated in the ASC, the facility parking spaces would not be used for storage of vehicles or 2 materials or for parking trucks. 3 4

(G) Unless otherwise provided, required parking and loading spaces shall not be located in a 5 required yard; 6

7 No yard areas are required for the facility. 8 9

(H) Plans shall be submitted as provided in § 152.767 of this chapter; 10 11 See zoning discussion above. 12 13

(I) Design requirements for parking lots: 14 15

(1) Areas used for standing and maneuvering of vehicles shall have paved surfaces 16 maintained adequately for all weather use and so drained as to avoid flow of water 17 across public sidewalks; 18

19 As stated in the ASC, the access point, driveway, internal roads and parking spaces would all be 20 paved. Stormwater would be managed under the NPDES 1200-C permit and stormwater runoff 21 during operation would be collected in a detention basin allowed to percolate into the ground, 22 and not run across public sidewalks. 23 24

(2) Except for parking to serve residential use, parking and loading areas adjacent to 25 residential use shall be designed to minimize disturbance of residents by the erection 26 between the uses of a sight obscuring fence of not less than five feet in height except 27 where vision clearance is required; 28

29 This provision is not applicable because there are no residential uses adjacent to the station. 30 31

(3) Parking spaces along the outer boundaries of a parking lot shall be contained by a 32 curb at least four inches high and set back a minimum of four and one-half feet from the 33 property line, or by a bumper rail; 34

35 The applicant proposes to provide the required curb or bumper rail facilities and setbacks. 36 37

(4) Artificial lighting which may be provided shall not create or reflect glare in a 38 residential zone or on any adjacent dwelling; 39

40 This provision is not applicable because there are no residential zones or dwellings adjacent to 41 the station. 42


1 (5) Service drives to off-street parking areas of four or more spaces shall be clearly and 2 permanently marked and defined through use of rails, fences, walls, or other barriers or 3 markers on frontage not occupied by service drives; 4 5

The single driveway access point to the Station would be clearly and permanently marked. 6 7

(6) Service drives shall have a minimum vision clearance area bounded by the driveway 8 centerline, the street right-of-way line, and a straight line joining said lines 20 feet from 9 their intersection. 10

11 Vision clearance would be kept clear and free of any visual obstructions. 12 13 Based upon the foregoing, the Council finds that the facility complies with the requirements of 14 UCDC Sections 152.560 and 152.562. 15 16 G. Umatilla County Transportation System Plan 17 18 Umatilla County’s Transportation System Plan is implemented through the County 19 Development Code. Based upon the above discussion, the Council finds that the facility 20 complies with all relevant requirements, including the Access Management provisions of UCDC 21 Section 152.018. 22 23 H. Comprehensive Plan Policies 24 25 UCDC Section 152.612(C) provides that a conditional use permit “will not be approved 26 unless the proposed use of the land will be in conformance with the County Comprehensive 27 Plan.” The County SAG identified the applicable policies of the UCCP. The SAG indicated that 28 “most, if not all” of the identified policies are implemented through the UCDC. The Council finds 29 that the facility complies with the identified applicable policies of the UCCP for the reasons 30 discussed below. 31 32 Citizen Involvement 33 34

Policy 1: Provide information to the public on planning issues and programs, and encourage 35 continuing citizen input to planning efforts. 36 37 Policy 5: Through appropriate media, encourage those County residents’ participation during 38 both city and county deliberation proceedings. 39

40 The identified Citizen Involvement policies are procedural and do not contain substantive 41 standards applicable to the siting of the proposed facility. The applicant has elected to have the 42


Council make the land use decision in accordance with ORS 469.504(1)(b), and therefore the 1 Council’s procedural requirements apply. The Council’s procedure for making a site certificate 2 decision is a public process. The application is a public document that has been made available 3 for public viewing. The documents issued by the department are public documents, most of 4 which are posted on the department’s Internet website. The department uses direct mailing, 5 newspaper publication and the Internet to inform the public about the proceedings regarding 6 the proposed facility. Opportunities for public comment are provided throughout the ASC 7 review process. On April 14, 2015, the department issued a public notice of the Draft Proposed 8 Order to the Council’s general mailing list and to adjacent property owners; and published 9 notice of the Draft Proposed Order in the East Oregonian, a newspaper of general circulation in 10 the area of the facility. The public notice and newspaper notice contained an announcement of 11 a public hearing, which the department held on May 14, 2015 in Hermiston, Oregon. The 12 comment deadline and close of the public record on the Draft Proposed Order was May 14, 13 following completion of the public hearing. No persons requested party status in the contested 14 case proceeding. 15 16 Based on the above, to the extent it constitutes an approval criterion, the Council finds that the 17 facility complies with the above Umatilla County Comprehensive Plan Policy. 18 19 Agriculture 20 21

Policy 1: Umatilla County will protect, with Exclusive Farm Use zoning pursuant to ORS 215, 22 lands meeting the definition of farmland in this plan and designated as 23 Agricultural on the Comprehensive Plan Map. 24

25 The County has established an EFU zone and has implemented ordinances to protect farmland. 26 The proposed energy facility is located within the County’s EFU zone and allowed as a 27 conditional use. The applicable ordinances and the facility’s compliance with each are 28 addressed in the sections above. The natural gas pipeline and transmission line are both 29 permitted uses in the EFU zone, as addressed above as well. 30 31 The step-up substation121 would occupy approximately three acres of farmland, within a 32 transmission corridor already occupied by various transmission facilities. The adjacent 33 underground line would be similarly located adjacent to the McNary Substation in an area 34 heavily developed with power transmission infrastructure. As a result, the step-up substation 35 and underground line would have a minor impact on agricultural activities. 36 37 Based on the above, the Council finds that the facility complies with Policy 1, above. 38 39

121 The step-up substation is discussed further below with regard to the City of Umatilla applicable

substantive criteria; however, compliance with the Umatilla County Comprehensive Plan is required; therefore, the Council has included the substation as part of this section.


Policy 8: The county shall require appropriate procedures/standards/policies be met in the 1 Comprehensive Plan and Development Ordinance when reviewing nonfarm uses for 2 compatibility with agriculture. 3

4 The County identified the applicable standards and policies for reviewing the proposed facility 5 and has participated in the Council’s site certificate application review process in accordance 6 with ORS 469.504. 7 8

Policy 17: Continue to encourage timber management to occur on lower elevation seasonal 9 grazing as permitted in the Exclusive Farm Use Zone 10

11 This provision is not applicable because there are no timber resources in the vicinity of the 12 energy facility, the natural gas pipeline or the transmission line. 13 14 Open Space, Scenic and Historic Areas, and Natural Resources 15

16 Policy 1: (a) The County shall maintain this resource by limiting development mainly to 17 existing built up areas. 18

19 There are no inventoried significant natural areas or significant scenic areas on the energy 20 facility site. Further, the location of the energy facility, adjacent to the Hermiston Generating 21 Plant, a railroad and other industrial uses, minimize the impact the proposed facility on open 22 space, scenic and historic areas, and natural areas. Moreover, the energy facility site is 23 approximately 20 acres. The natural gas pipeline will be located underground and located 24 within an existing right of way, which significantly minimizes the impact of the pipeline on the 25 open space, scenic and historic areas and natural resources. Moreover, the applicant proposes 26 to reconductor an existing line, utilizing the existing infrastructure which minimizes its impact 27 on open space, scenic and historic areas, and natural resources. Based on the above, the 28 Council finds that the facility complies with Policy 1(a). 29 30

Policy 5: (a) The County shall maintain rural agricultural lands, Development shall 31 be of low density to assure retention of upland game habitat, 32

33 (b) Land uses should maintain the vegetation along streambanks, fence rows, woodlots, 34 etc. Research ways to reduce harassment and loss of upland game by free roaming dogs 35 and cats. 36

37 The County development code allows the energy facility to be located within EFU-zoned lands 38 subject to the ordinances discussed above. There is limited vegetation on the site and the site 39 would be fenced to reduce the potential impacts on upland game. Both the transmission line 40 and natural gas pipeline are permitted within the EFU-zoned lands and both would be primarily 41 located within existing right of ways, thereby minimizing impacts to rural agricultural lands. 42


1 The step-up substation would occupy about three acres of lands in an area used for agricultural 2 uses and already occupied by other transmission facilities. There are no fence rows, woodlots, 3 or riparian vegetation in the vicinity of the step-up substation or underground line. Given the 4 agricultural use and infrastructure development in the area, the applicant states that the step-5 up substation site does not serve as upland game habitat. No hunting is permitted on the BPA 6 and BLM properties on which the substation and underground line would be located. 7 Based on the above, the Council finds that the facility complies with Policy 5(a). 8 9

Policy 6: (a) Developments or land uses that require drainage, channelization, filling or 10 excessive removal of riparian vegetation in sensitive waterfowl areas should be identified 11

12 As described above, the development of the energy facility site and natural gas 13 pipeline/transmission line are not expected to have any impact on riparian areas and no 14 drainage, channelization, filling or removal of riparian vegetation would occur along the 15 transmission line ROW. 16 17

Policy 8. (a) Setbacks shall be established to protect significant and other wetlands 18 19 As discussed above, the energy facility meets the stream and wetland setback requirements 20 established in the UCDC. There are no wetlands in the natural gas pipeline route and utilization 21 of the existing transmission towers would avoid any impacts from the transmission line on 22 wetlands. Based on the above, the Council finds that the facility complies with Policy 8(a). 23 24

Policy 9 (a) The County shall encourage land use practices which protect and enhance 25 significant wetlands. 26

27 As described above, the energy facility complies with the stream and wetland setback 28 requirements of the UCDC. No wetlands would be impacted by construction or operation of the 29 proposed facility. Therefore, the Council finds that the facility complies with Policy 9(a). 30 31 Policy 10 32 33

(c) Compatible land use shall maintain the riparian vegetation along streams in the 34 floodplain. Stream bank vegetation shall be maintained along streams outside of the 35 floodplain by utilizing appropriate setbacks. 36 37 (d) Development or land use that requires channelization, excessive removal of 38 streamside vegetation, alteration of stream banks and filling into stream channels shall 39 be restricted in order to maintain streams integrity. 40 41 (e) New roads, bridges and access rights-of-way shall be designed to avoid channel 42


capacity, and minimize removal of shoreline vegetation. 1 2 As described above, the energy facility meets the stream and wetland setback requirements 3 and no wetlands would be impacted by construction and operation of the energy facility. There 4 are no wetlands in the natural gas pipeline right of way and utilization of the existing 5 transmission towers would avoid any additional impact of the transmission line on wetlands in 6 the transmission corridor. The bridge to be constructed across the existing Westland Irrigation 7 District canal is proposed to be designed to prevent any impact on the capacity of the canal and 8 to minimize removal of vegetation along the canal. As stated in the ASC, facility roads would 9 not impact any riparian areas, stream capacity or shoreline vegetation because there are no 10 natural streams or riparian or shoreline vegetation on the site. Further no new roads or bridges 11 or access are proposed related to the natural gas pipeline and transmission line. 12 13 As explained in the ASC, there are no waterways or riparian vegetation in the vicinity of the 14 step-up substation or underground line, so the construction of the substation would not impact 15 channel capacity or riparian vegetation. 16 17 Based on the above, the Council finds that the facility complies with Policy 10 (c), (d) and (e). 18 19

Policy 20: 20 (a) Developments of potentially high visual impacts shall address and mitigate adverse 21 visual effects in their permit application, as outlined in the Development Ordinance 22 standards, 23 (b) It is the position of the County that the Comprehensive Plan designations and zoning 24 already limit scenic and aesthetic conflicts by limiting land uses or by mitigating conflicts 25 through ordinance criteria. However, to address any specific, potential conflicts, the 26 County shall insure special consideration of the following when reviewing a proposed 27 change of land use: 28

1. Maintaining natural vegetation whenever possible. 29 2. Landscaping areas where vegetation is removed and erosion might result. 30 3. Screening unsightly land uses, preferably with natural vegetation or landscaping 31 4. Limiting rights-of-way widths and numbers of roads intersecting scenic roadways 32 to the minimum needed to safely and adequately serve the uses to which they 33 connect. 34 5. Limiting signs in size and design so as not to distract from the attractiveness of the 35 area. 36 6. Siting developments to be compatible with surrounding area development, and 37 recognizing the natural characteristics of the location. 38 7. Limiting excavation and filling only to those areas where alteration of the natural 39 terrain is necessary, and revegetating such areas as soon as possible. 40 8. Protection vistas and other views which are important to be recognized because of 41 their limited number and importance to the visual attractiveness of the area. 42


1 As explained in the ASC, a visual impact study was prepared to assess potential impacts on 2 visual resources and no significant adverse visual impacts were identified. The results of the 3 visual resource analysis are discussed in more detail below. Condition J.1, addresses measures 4 to reduce the visual impact of the proposed facility. Additionally, Condition D.3 requires the 5 certificate holder to restore vegetation disturbed during construction in accordance with the 6 applicant’s Revegetation Plan. Condition E.4 requires the certificate holder to comply with 7 UCDC sections 152.545, which addresses design standards for signs. Based on the above, and 8 subject to compliance with the above listed conditions, the Council finds that the facility 9 complies with Policy 20. 10 11

Policy 22. The County shall cooperate with state agencies and other historical organizations 12 to preserve historic buildings and sites, cultural areas, and archeological sites and 13 artifacts. 14

15 Policy 23: (a) Umatilla County shall encourage and cooperate in developing a detailed 16 county-wide historic site inventory…. 17 18 Policy 24: (a) Umatilla County shall protect significant historical and cultural sites from land 19 use activities which diminish their value as historical resources…. 20 21 Policy 26: The County shall cooperate with the Tribe, Oregon State Historic Preservation 22 Office, and others involved in… identifying and protecting Indian cultural areas and 23 archeological sites. 24

25 The applicant addressed the potential impacts of the proposed facility on historic, cultural and 26 archaeological resources in Exhibit S of the application. The facility’s compliance with the 27 Council’s Historic, Cultural and Archaeological Resources Standard is discussed below, including 28 required site certificate conditions. The State Historic Preservation Office is a reviewing agency 29 in the Council’s site certificate process and SHPO received a copy of the complete site 30 certificate application as required under ORS 469.350. SHPO submitted comment on the 31 preliminary application for site certificate and concurred with the applicant’s findings of no 32 adverse effect due to the proposed project.122 In addition, the department identified the 33 Confederated Tribes of the Umatilla Indian Reservation, Confederated Tribes of Warm Springs, 34 Nez Perce Tribe and Yakama Nation as reviewing agencies and provided each with a copy of the 35 ASC to review. Therefore, the Council finds that the facility complies with Policy 22, Policy 23(a), 36 Policy 24(a) and Policy 26, above. 37 38

Policy 37. The County shall ensure compatible interim uses provided through Development 39

122 PERAPPDoc18


Ordinance standards, and where applicable consider agriculturally designated land as open 1 space for appropriate and eventual resource or energy facilities use. 2

3 The facility is proposed to be located adjacent to the existing Hermiston Generating Plant, a 4 railway line and other industrial uses. However, the County did not identify any ordinance 5 standards that “ensure compatible interim uses,” nonetheless, the policy does states that 6 where applicable the County should consider agriculturally designated land as appropriate for 7 energy facility use. 8 9

Policy 38. 10 (a) The County shall encourage mapping of future agencies sites, ensure their protection 11 from conflicting adjacent land uses, and required reclamation plans. 12 (b) Aggregate and mineral exploration, extraction, and reclamation shall be conducted in 13 conformance with the regulations of the Department of Geology and Mineral Industries. 14 (c) The County Development Ordinance shall include conditional use standards and other 15 provisions to limit or mitigate conflicting uses between aggregate sites and surrounding 16 land uses. 17

18 Policy 39. 19

(a) The County shall strictly enforce state and county development standards pertaining 20 to gravel extraction/processing uses through appropriate agencies; whether new 21 operations or expansions of existing sites 22

23 As explained in the ASC, no inventoried aggregate sites would be affected by the project and 24 there are no inventoried aggregate sites at the energy facility site or along the natural gas 25 pipeline route. According to the ASC, there are several inventoried aggregate resource sites 26 along the transmission line right of way; however, the facility is proposed to utilize the existing 27 transmission towers and would only upgrade the transmission line, in the vicinity of the 28 identified aggregate resources. Consequently, the proposed reconductored transmission line 29 would not impact the aggregate resources as no new construction would be necessary.123 30 Therefore, the Council finds that the facility complies with Policy 38 (a), (b) and (C) and Policy 31 39, above. 32 33

Policy 42 (a) Encourage development of alternative sources of energy 34 35 The proposed facility is intended to help balance the fluctuating load from regional wind power, 36 which would help to stabilize the grid and foster further development of renewables, according 37 to the ASC. Therefore, the Council finds that the facility complies with Policy 42(a). 38 39 Air, Land, Water Qualities Policies 40



1 Policy 1. Discharges from existing and future developments shall not exceed applicable 2 environmental standards. 3

4 As explained in the ASC, stormwater runoff occurring during Station construction and 5 associated activities would be managed as required by a NPDES 1200-C permit issued by DEQ. 6 Stormwater runoff during operation of the Station would be collected in a detention basin and 7 allowed to percolate into the ground. Neutralized demineralized wastewater from the onsite 8 water treatment system would be used as turbine water injection for nitrogen oxide emission 9 control. As proposed, that cooling tower blowdown would be routed to the HGP for reuse as 10 process water in that facility and subsequent reuse at the adjacent Lamb Weston agricultural 11 processing plant. In the event HGP and Lamb Weston are unable to accept blowdown water 12 from the Station, the applicant would utilize a ZLD system for onsite management of its 13 wastewater, as detailed in Exhibit V. 14 15 Sanitary waste would be disposed of through a new sanitary leach field system to be 16 constructed on the energy facility site. Combustion turbine water wash would be collected in a 17 holding tank, tested to determine the concentrations of the constituent’s present, and trucked 18 offsite for disposal at an approved facility. The transmission line and natural gas pipeline would 19 not discharge pollutants to surface water or groundwater during operation. 20 21 Therefore, the Council finds that the facility complies with Air, Land, Water Qualities Policy 1. 22 23

Policy 7. Consider cumulative noise impacts and compatibility of future developments, 24 including the adoption of appropriate mitigating requirements of plan updates. 25

26 The applicant addressed the potential noise impacts of the proposed facility in Exhibit X of the 27 ASC. And as discussed below, the facility would comply the applicable noise limits. Therefore, 28 the Council finds that the facility complies with Air, Land, Water Qualities Policy 7. 29 30

Policy 8 Recognize that protection of existing wells has priority over development proposals 31 requiring additional subsurface sewage disposal. 32

33 As provided in the ASC, construction of the sanitary septic leach field would not impact any 34 existing wells and it would comply with all DEQ construction, operation and setback 35 requirements. Based on the information provided, the Council finds that the facility complies 36 with Air, Land, Water Qualities Policy 8. 37 38 Natural Hazards Policies 39 40


Policy 1. The County will endeavor, through appropriate regulations and cooperation with 1 applicable governmental agencies, to protect life and property from natural hazards and 2 disasters found to exist in Umatilla County. 3

4 Policy 4. Active earthquake fault lines have not been conclusively identified in the County. 5

6 The applicant provided information regarding an analysis of seismic hazards and non-seismic 7 geological hazards in Exhibit H of the application. The Council’s Structural Standard, which 8 addresses the risk to public safety from such hazards is discussed below and includes required 9 site certificate conditions for compliance. Therefore, the Council finds that the facility, subject 10 to compliance with the site certificate conditions, complies with Natural Hazards Policies 1 and 11 4. 12 13 Recreational Needs Policies 14 15

Policy 1. Encourage and work with local, state, federal agencies and private enterprise to 16 provide recreational areas and opportunities to citizens and visitors to the County. 17

18 The proposed facility is not located within an established recreational area. The applicant 19 provided information regarding the proposed facility’s potential impact on recreational 20 opportunities in Exhibit T of the application. As discussed below the proposed facility would 21 comply with the Council’s Recreational Standard. Therefore, the Council finds that the facility 22 complies with Recreational Needs Policy 1. 23 24 Economy of the County 25 26

Policy 1: Encourage diversification within existing and potential resource-based industries. 27 28 Policy 4: Participate in selected economic development programs and projects applicable to 29 the County’s desired growth. 30

31 Policy 8. Evaluate economic development proposals upon the following: 32 Will the proposal: 33

(a) Increase or decrease available [water] supplies? 34 (b) Improve or degrade qualities? 35 (c) Balance withdrawal with recharge rates? 36 (d) Be a beneficial use? 37 (e) Have sufficient quantities available to meet needs of the proposed project and other 38 existing and [reasonably] anticipated needs? 39 (f) Reduce other use opportunities and if so will the loss be compensated by other equal 40 opportunities? 41

42


As stated in the ASC, the facility would have an economic development impact on Umatilla 1 County, through temporary construction jobs and permanent utility operations and 2 maintenance jobs. Further the facility is less than 20 acres in size, which accounts for less than 3 0.002% of Umatilla County cropland. Therefore, no impacts on aggregate mining, timber 4 harvesting or other resource based industries would be impacted by the facility and the facility 5 would diversify the area. 6 7 Moreover, as explained in Exhibit K, the facility would have minimal impact on the existing 8 agricultural economy of the region and would not hinder the achievement of any County 9 economic development programs. However, the County has not identified any “selected 10 economic development programs” that would be applicable to the proposed facility. 11 12 As explained in Exhibit O of the ASC and discussed below, the Port of Umatilla would provide 13 water service to the site and there are sufficient quantities of water available as confirmed by 14 the Port of Umatilla.124 The energy facility’s use would not have any impact on the availability of 15 the water supplies and the facility would not withdraw groundwater for its water supply. 16 Further, as stated in Exhibit V of the ASC, there would be no direct discharge of water to surface 17 or groundwater; therefore, there would be no impact on water quality.125 18 19 Beneficial use is defined by Oregon Water Resource regulations as the “Reasonably 20 efficient use of water without waste for a purpose consistent with the laws and the best 21 interests of the people of the state.”126 The Port of Umatilla’s Permit is for “municipal water 22 use,” defined by regulation as “the delivery and use of water through the water service system 23 of a municipal corporation for all water uses usual and ordinary to such systems,” specifically 24 including “industrial water use.”127 “Industrial water use” includes water used for “non-25 hydroelectric power production.”128 As provided in the ASC, water use at the Energy Facility Site 26 would be reasonably efficient, utilizing approximately 1,300 gallons per day, and serves the best 27 interests of the state by enabling the development of necessary load-balancing electrical 28 production. Thus, the use of the Port’s municipal water right for power production purposes is 29 a “beneficial use” consistent with the regulations. 30 31 For these reasons, the Council finds that the facility complies with Economy of the County, 32 Policies 1, 4 and 8. 33 34 Public Facilities and Services Policies 35 36

124 See Exhibit O of the ASC. 125 ASC, Exhibit K, K-81. 126 OAR 690-250-0010(3). 127 OAR 690-300-0010(29). 128 OAR 690-300-0010(25).


Policy 1. The county will control land development in a timely, orderly, and efficient manner 1 by requiring that public facilities and services be consistent with established levels of rural 2 needs consistent with the level of service requirements listed on pages J-27 and J-28 of the 3 Technical Report. Those needs are identified as follows: 4

(a) Fire protection shall be provided consistent with Policies 8, 9, 10 5 (b) Police protection shall be provided consistent with Policy 7. 6 (c) Surface. Water Drainage-Roadside drainage shall be maintained and plans for 7 drainage shall be required in multiple use areas. 8 (d) Roads shall be maintained or improved to standards adopted by the County Road 9 Department which are consistent with nationally accepted standards that correlate 10 traffic to desired road conditions. 11

12 Policy 2: Require that domestic water and sewage disposal systems for rural areas be 13 provided and maintained at levels appropriate for rural use only. Rural services are not to be 14 developed to support urban uses. 15

16 Policy 9. Require adequate water supplies for fire fighting as part of significant new 17 developments in rural areas in coordination with the appropriate rural fire district. 18

19 Policy 19. Where feasible, all utility lines and facilities shall be located on or adjacent to 20 existing public or private rights-of-way so as to avoid dividing existing farm or forest units; 21 and transmission lines should be located within existing corridors as much as possible. 22

23 Subsections (a) and (b) incorporate policies 7, 8, 9 and 10 regarding fire protection and police 24 protection. Policies 7, 8 and 10 do not contain standards applicable to siting the proposed 25 facility. Policy 9 is discussed below. The applicant addressed the proposed facility’s potential 26 impacts on fire response and police protection services in Exhibit U of the application. The 27 Council’s analysis and the required conditions are discussed below in response to the Council’s 28 Public Services Standard. However, as discussed in that section, there are no expected 29 significant adverse impacts to service providers in the area expected.129 30 31 As discussed above, the Station would be constructed to prevent stormwater from leaving the 32 site and this would be achieved by grading the site and installing stormwater detention soil 33 berms around the station and a stormwater detention basin. The applicant provided a traffic 34 impact analysis in Exhibit U of the ASC and based upon the results of that study, the traffic level 35 of service and vehicle to capacity ratio would remain at or above all relevant standards on 36 studied intersections through the construction and operation phases. As explained in the ASC, 37 water service to the site would be provided by the Port of Umatilla. The applicant would not 38 use the water line extension to support additional residential or commercial development. 39 Adequate water for firefighting would be provided by the Port of Umatilla and the facility would 40



have an onsite fire protection system (See Condition M.7). The entire length of the natural gas 1 pipeline and the majority of the transmission line would be located within the existing right of 2 ways. The only new transmission lines are necessary to connect the transmission line to the 3 station and it would not divide existing farm or forest units, as explained in the ASC.130 4 5 Based on the above information, the Council finds that the facility complies with Public Facilities 6 and Services Policies 1, 2, 9 and 19. 7 8 Transportation Policies 9 10

Policy 18. The County will review right-of-way acquisitions and proposals for transmission 11 lines and pipelines so as to minimize adverse impacts on the community. 12

13 Policy 20. Request larger industrial and commercial development proposals, consider 14 sponsoring carpooling programs. 15

16 The entire length of the natural gas pipeline would be located within the existing HGP right of 17 way. Further, the majority of the proposed transmission line would be located within the 18 existing right of way. A limited new transmission line right of way may be needed to cross the 19 UPRR line from the energy facility site and across Westland Road to the adjacent LI-zoned lands. 20 The limited nature of the new right of way and its location adjacent to the existing uses of a 21 similar nature would minimize the impact of any new right of way. The Station would only 22 require approximately 6 to 8 full time employees during operations. Therefore, a carpooling 23 program is not necessary. 24 25 Based on this information, the Council finds that the facility complies with Transportation 26 Policies 18 and 20. 27 28 Energy Conservation Policies 29 30

1. Encourage rehabilitation/weatherization of older structures and the utilization of locally 31 feasibly renewable energy resources through use of tax and permit incentives 32

33 The use of local tax incentives to encourage this development is not a standard applicable to 34 the proposed facility. As stated in the ASC, the facility would help to stabilize the electric power 35 grid because it would provide load shaping of the irregular wind-generated electricity in the 36 region. Therefore, the Council finds that the facility complies with Energy Conservation Policy 1. 37 38 Based upon the above considerations, the Council finds that the facility complies with the 39 Umatilla County Comprehensive Plan. 40



1 In a comment submitted in response to the DPO, the Umatilla County Board of County 2 Commissioners131 requested that the Council specifically list each land use permit to be issued 3 by the County as part of Condition B.6, above, which requires the certificate holder to obtain all 4 necessary federal, state and local permits or approval. As discussed above, pursuant to ORS 5 469.503(3), after issuance of a site certificate, any affected state agency, county, city and 6 political subdivision must, upon submission by the applicant of the proper application and 7 payment of proper fees, but without hearings of other proceedings, promptly issue the permits, 8 licenses and certificates addressed in the site certificate. Further, in the above review of the 9 facility’s compliance with the county’s applicable substantive criteria, the Council has 10 necessarily identified each required County conditional use permit and zoning permit. 11 Nonetheless, in response to the County’s comment, the applicant proposed condition language, 12 which was provided to the Council for consideration during its review of the DPO. The Council 13 adopts the applicant’s proposed condition language: 14 15

Condition E.5: Prior to beginning construction, the certificate holder shall obtain all 16 required land use approvals from Umatilla County as listed in the letter from the Umatilla 17 County Board of Commissioners dated May 14, 2015, and shall submit all associated 18 applications and pay all associated application fees. 19 20

IV.E.1.b. Applicable Substantive Criteria – City of Umatilla 21 I. 1972 Umatilla County Zoning Ordinance 22 23 As explained in the ASC, the proposed transmission line crosses several areas that are within 24 the City of Umatilla Urban Growth Area. The step-up substation and underground line are 25 proposed to be located entirely within the Urban Growth Area. The urban growth area is an 26 area inside the City’s urban growth boundary but outside of the city limits. The property within 27 the urban growth area has a “UGB Plan Designation” on the City of Umatilla Plan Map, but that 28 designation only reflects the intended land use designation for the property when it is annexed 29 to the City; it does not regulate the current use of the lands. There is a Joint Management 30 Agreement pursuant to which the City and the County cooperate in managing the UGA. The 31 Joint Management Agreement indicates that it is the 1972 Umatilla County Zoning Ordinance 32 that is in effect for the UGA. Thus, the land within the UGA is governed by the provisions of the 33 1972 Umatilla County Zoning Ordinance, not the current development code discussed above. 34 35 The transmission line crosses several zones within the UGA (F-1, F-2, M-2 and R-1) and the step-36 up substation and underground line are located entirely within the F-1 zone. 37 38

131 PERAPPDoc31.Tamra Mabbott, Umatilla County Planning Director also provided oral testimony during

the public hearing on May 14th, on behalf of the Umatilla County Board of County Commissioners, reiterating the County’s submitted comments.


A. Exclusive Farm Use Zone (F-1) 1 2 Section 3.010 DESCRIPTION AND PURPOSE 3 4

The F-1 Exclusive Farm Zone is designed to maintain the agricultural economy of the county 5 by reserving farmland for exclusive agricultural use. It is directly related to certain tax 6 provisions in Oregon Statutes and has been taken from ORS 215.203 and 215.213. Please 7 see Addenda for further explanation. 8

9 As explained in the ASC, the Station would utilize an existing transmission line right of way 10 through the F-1 zoned lands. The ROW is located in an existing transmission easement that runs 11 to the McNary Substation and the transmission line would utilize existing transmission towers 12 along the length of the line. A proposed connecting structure and step-up substation would be 13 constructed in an area with an already-high density of existing power lines and transmission 14 towers. The new step-up substation would be constructed on approximately 3 acres. An 15 underground line would connect the step-up substation with the McNary Substation. The 16 applicant proposes to obtain a new ROW from BPA for the step-up substation location and the 17 portion of the underground line on BPA property. The McNary Substation and the immediately 18 surrounding lands located north of the railroad line are owned by the U.S. Bureau of Land 19 Management, and managed by the Army Corps of Engineers. The applicant states that it is 20 coordinating with these entities to obtain a ROW for the portion of the underground line north 21 of the railroad tracks and the underground termination structure needed to connect the step-22 up substation with the McNary Substation. 23 24 Section 3.012 USES PERMITTED OUTRIGHT 25 26

In an F-1 Zone, the following uses and their accessory uses are permitted upon the issuance 27 of a zoning permit: 28 *** 29 30

(5) Utility facilities necessary for public service except commercial facilities for the 31 purpose of generating power for public use by sale. 32

33 As discussed above in relation to UCDC § 152.059 above, the existing transmission line qualifies 34 as a utility facility necessary for public service and therefore is permitted outright upon the 35 issuance of a zoning permit. No new transmission towers are proposed to be constructed in the 36 F-1 zone, and Umatilla County’s Response to Amended Notice of Intent dated September 23, 37 2013 indicates that “[n]o land use permit is required to co-locate and upgrade the transmission 38 line.” 39 40 Further, the connecting structure, step-up substation, risers, and underground line are utility 41 facilities necessary for public service, and are therefore permitted outright. As discussed above, 42


under ORS 215.275(1), a utility facility established under ORS 215.283(1)(c) is necessary for 1 public service if the facility “must be sited in an exclusive farm use zone in order to provide the 2 service.” To demonstrate that a utility facility is necessary under ORS 215.283(1)(c), ORS 3 215.275(2) requires an applicant to show that reasonable alternatives have been considered 4 and that the facility must be sited in an EFU zone based on one or more of the following: 5 6

a. Technical and engineering feasibility; 7 8 As explained in the ASC, the step-up substation is necessary to step up the 230kV power 9 generated by the energy facility to the 500-kV power needed to connect to the McNary 10 Substation. Step-up substations are commonly used and are technically feasible to perform this 11 function. 12 13

b. The proposed facility is locationally dependent. A utility facility is locationally dependent if 14 it must cross lands in one or more areas zoned for exclusive farm use in order to achieve a 15 reasonably direct route or to meet unique geographical needs that cannot be satisfied on 16 other lands; 17

18 As stated in the ASC, it is necessary to site the step-up substation close to the McNary 19 Substation to provide a reasonably direct connection between the two. As provided in the ASC, 20 there are no potential locations for the substation adjacent to the McNary Substation and 21 within the existing ROW that are not zoned EFU. Therefore, the step-up substation is 22 locationally dependent. 23 24

c. Lack of available urban and non-resource lands; 25 26 The majority of Umatilla County is composed of rural resource lands, and the area along the 27 existing transmission line ROW in the vicinity of the McNary Substation is zoned for resource 28 lands. The step-up substation site is located within the “Public Facility Plan” designation of the 29 City of Umatilla Plan Map. The heavy concentration of utility services in the area, including the 30 McNary Substation and various transmission facilities, limits the area’s potential for use as 31 resource lands. The City of Umatilla lands crossed by the transmission corridor are zoned for 32 residential or neighborhood commercial uses, and are less appropriate for substation 33 development than the chosen site. 34 35

d. Availability of existing rights-of-way; 36 37 As explained in the ASC, the step-up substation would be sited in the existing transmission line 38 ROW adjacent to the McNary Substation, minimizing the impact on productive agricultural land. 39 40

e. Public health and safety; and 41 42


The step-up substation would be located in an area already used for utility purposes, including 1 power transmission. The impacts to public health and safety would be minimal, as no 2 residential or other high-occupancy uses are located near the new substation. 3 4

f. Other requirements of state or federal agencies. 5 6 As provided throughout this final order, all applicable requirements of state or federal agencies 7 must be satisfied at the time of construction of the facility. 8 9

(3) Costs associated with any of the factors listed in subsection (2) of this section may be 10 considered, but cost alone may not be the only consideration in determining that a utility 11 facility is necessary for public service. Land costs shall not be included when considering 12 alternative locations for substantially similar utility facilities. The Land Conservation and 13 Development Commission shall determine by rule how land costs may be considered 14 when evaluating the siting of utility facilities that are not substantially similar. 15

16 The costs of developing the new step-up substation at the proposed location are anticipated to 17 be significantly lower than any alternative alignment. However, the cost savings results from 18 the proposed location being within an existing utility corridor, and from minimizing the need to 19 construct new transmission towers and a lengthy and costly 550-kV line, not from the fact that 20 the corridor is on land zoned EFU. 21 22

(4) The owner of a utility facility approved under ORS 215.213 (1)(c) or 215.283 (1)(c) 23 shall be responsible for restoring, as nearly as possible, to its former condition any 24 agricultural land and associated improvements that are damaged or otherwise disturbed 25 by the siting, maintenance, repair or reconstruction of the facility. Nothing in this section 26 shall prevent the owner of the utility facility from requiring a bond or other security from 27 a contractor or otherwise imposing on a contractor the responsibility for restoration. 28

29 At the step-up substation, some lands would be permanently removed from potential 30 agricultural production; however, any other disturbed agricultural lands would be restored and 31 returned to agricultural production after construction activities are completed. 32 33

(5) The governing body of the county or its designee shall impose clear and objective 34 conditions on an application for utility facility siting under ORS 215.213 (1)(c) or 215.283 35 (1)(c) to mitigate and minimize the impacts of the proposed facility, if any, on 36 surrounding lands devoted to farm use in order to prevent a significant change in 37 accepted farm practices or a significant increase in the cost of farm practices on the 38 surrounding farmlands. 39

40 As provided in the ASC, the construction of the step-up substation and underground line would 41 not have long-term impacts on surrounding farmlands, cause a significant change in farm 42


practices, or affect the costs of inputs to the established agricultural practices. Approximately 1 three acres of land used for farming would be occupied by the step-up substation and 2 precluded from future farming use. The surrounding agricultural lands are tractor farmed row 3 crops, and accepted farm practices include soil preparation, sowing, fertilizing, pest and weed 4 management, and harvesting. Necessary inputs are assumed to be labor, fertilizer, electricity, 5 and water. Adjacent farming practices have adapted to an area that includes a high 6 concentration of power transmission towers and overhead lines. The development of the step-7 up substation and underground line would not change these accepted farm practices, or affect 8 the availability or costs of the necessary inputs. Specifically, the step-up substation would not 9 physically interfere with the ability to irrigate, fertilize, or harvest crops on surrounding fields. 10 The physical improvements and operations of the step-up substation or underground line 11 would not interfere with the ability to operate necessary farm equipment on surrounding lands, 12 or to provide fertilizer, irrigation water, pesticides or other necessary crop inputs, and would 13 not affect the costs of these inputs. 14 15 No center pivot irrigation or other systems would be impacted by the step-up substation. 16 Farmlands disturbed during the construction of the underground line would be restored and 17 returned to agricultural production. Future agricultural production would not be impacted by 18 the presence of the underground line, which would be buried to a sufficient depth so as to 19 avoid interference with agricultural practices. 20 21 The potential for a change of practices on lands adjacent to the step-up substation, such as 22 from electrical impacts, potential for conflicts with aerial spraying, and potential for spread of 23 invasive species due to construction, is very limited because the step-up substation is located in 24 an existing ROW in an area with existing transmission infrastructure. 25 26 Based upon the above information, the Council finds that the step-up substation is a “utility 27 facility necessary for public service” and, therefore, permitted in the EFU zone. 28 29 30 Section 3.014 DIMENSIONAL STANDARDS 31 32

In an F-1 Zone, the following dimensional standards shall apply: 33 34

(1) Minimum Lot Area: 19 acres for a principal dwelling unit. 35 36 The 19-acre minimum lot size standard is inapplicable because there are no dwelling units 37 associated with the transmission line or the step-up substation. 38 39

(2) Setback: No building shall be located closer than 20 ft. from a property line abutting a 40 street or road. 41

42


The facility would comply with all setback requirements in the F-1 zone. No new transmission 1 towers are proposed to be constructed in the F-1 zone, and any buildings associated with the 2 step-up substation would be set back more than 20 feet from any property line abutting a 3 street or road. 4 5

(3) Minimum Lot Area for Nonfarm Uses: As determined by the Department of 6 Environmental Quality to be necessary for the protection of public health. 7

8 BPA owns the property on which the step-up substation and a portion of the underground line 9 would be sited, and BLM owns the property on which the remainder of the underground line 10 and the underground termination structure are to be located. Nonetheless, no new lots would 11 be created so this provision does not apply. 12 13 Section 3.016 SIGNS 14 15

In an F-1 Zone, the following signs are permitted upon the issuance of a zoning permit: type 16 2, 3, 4, 5, and 6. 17

18 All new signs would be limited to those required for public safety notice requirements. See 19 condition E.4 above, which limits facility signage. 20 21 B. General Rural Zone (F-2) 22 23 Section 3.020 DESCRIPTION AND PURPOSE 24 25

The F-2 General Rural Zone is intended to apply to farmlands that would not be approprate 26 for an F-1 Exclusive Farm Use classification. It is designed to maintain the openness and rural 27 nature of the country-side, and to provide areas which are appropriate for most kinds of 28 typical rural development. It also allows the Planning Commission to attach special 29 conditions to certain uses that have a potentially detrimental effect on neighboring lands. 30

31 The transmission line traverses F-2 zoned land located to the east of I-82 in an existing 32 transmission line ROW. The transmission line would utilize existing transmission towers, 33 thereby minimizing any potential impacts on the openness and rural natural of the country side. 34 35 Section 3.024 CONDITIONAL USES 36 37

In an F-2 Zone, the following uses and their accessory uses are permitted subject to the 38 requirements of Section 7.010 through 7.040 inclusive and upon issuance of a zoning permit: 39

40 (14) Utility facility; 41

42


Section 1.090 DEFINITIONS 1 2

(63) Utility Facility: Any major structure owned or operated by a public, private or 3 cooperative electric, fuel, communication, sewage or water company for the generation, 4 trans-mission, distribution or processing of its productions or for the disposal of cooling 5 water, waste or by-products, and including power transmission lines, major trunk 6 pipelines, power substations, dams, water towers, sewage lagoons, sanitary landfills and 7 similar facilities, but excluding sewer, water, gas, telephone and power local distribution 8 lines and similar minor facilities allowed in any zone. 9

10 Power transmission lines and substations are specifically defined as “utility facilities” and are 11 allowed as a conditional use on F-2 zoned lands. Umatilla County’s Response to Amended Notice 12 of Intent dated September 23, 2013, however, indicated that “[n]o land use permit is required 13 to co-locate and upgrade the transmission line.” Nonetheless, as described below, the 14 reconductored transmission line meets all conditional use requirements. 15 16 Section 3.026 DIMENSIONAL STANDARDS 17 18

In an F-2 Zone, the following dimensional standards shall apply: 19 20

(1) Minimum Lot Area: 19 acres for a principal dwelling unit. 21 (2) Minimum Lot Area for All Other Uses: As determined by the Department of 22 Environmental Quality to be necessary for the protection of public health; 23 (3) Setback: No building shall be located closer than 20 feet from a property line abutting 24 a street or road; 25 (4) Conditional Uses: Additional dimensional standards may be required by the 26 Planning Commission in approving a conditional use, as provided in Article 7. 27

28 The lot area requirements above are not applicable because no new lots or dwellings would be 29 created in F-2 zoned lands. The setbacks are also inapplicable because no new buildings or 30 transmission towers would be constructed in the F-2 zone. 31 32 C. Heavy Industrial Zone (M-2) 33 34 Section 3.140 DESCRIPTION AND PURPOSE 35 36

The M-2 Heavy Industrial Zone is designed to provide for industrial development where 37 potential nuisances will have a minimum negative effect on adjacent property. It is 38 appropriate for areas near major transportation facilities which are suitable for all types of 39 industrial development. 40

41


The transmission line crosses M-2 zoned lands, located entirely within the existing transmission 1 corridor. The reconductored transmission line would not interfere with any existing industrial 2 uses or pose a nuisance to adjacent uses. 3 4 Section 3.144 CONDITIONAL USES 5

6 In an M-2 Zone the following uses and their accessory uses are permitted, subject to the 7 requirements of Sections 7.010 through 7.040 inclusive and upon the issuance of a zoning 8 permit: 9


12 As discussed previously, power transmission lines are specifically defined as “utility 13 facilities” and therefore are allowed as a conditional use on M-2 zoned lands; however, 14 Umatilla County’s Response to Amended Notice of Intent dated September 23, 2013 indicated 15 that “[n]o land use permit is required to co-locate and upgrade the transmission line.” 16 Nonetheless, as described below, the reconductored transmission line would meet all 17 conditional use requirements. 18 19 Section 3.146 DIMENSIONAL STANDARDS 20 21

In an M-2 Zone the following dimensional standards shall apply: 22 23

(1) Minimum Lot Area: As determined by the Department of Environmental Quality to be 24 necessary for the protection of public health; 25 (2) Setback: No building shall be located closer than 30 feet from a lot line except by a 26 ruling of the Planning Commission upon the request of a property owner; 27 (3) Conditional Uses: Additional dimensional standards may be required by the Planning 28 Department in approving a conditional use as provided by Article 7. 29

30 The lot area requirements are inapplicable because no new lots or dwellings would be created 31 in M-2 zoned lands. The setbacks are also inapplicable because no new buildings or 32 transmission towers would be constructed in the M-2 zone because the transmission line will 33 utilize existing transmission towers within the M-2 zone. 34 35 D. Agricultural Residential Zone (R-1) 36 37 Section 3.070 DESCRIPTION AND PURPOSE 38 39

The R-1 Agricultural-Residential Zone is designed to provide for very low density residential 40


development along with a continuation of farm uses. Acreage tracts are required because 1 utilities will not be available in the foreseeable future. Conflicting business and industrial 2 uses are excluded. 3

4 The existing transmission line crosses a small stretch of R-1 zoned land, including the Umatilla 5 River and lands immediately adjacent to the river. However, there are currently no transmission 6 towers in the R-1 zone; the necessary towers are located in the immediately adjacent zones. 7 The reconductored line would cross lands zoned R-1; however, the existing tower already in 8 existence in the immediately adjacent zones would continue to serve the reconductored line so 9 no existing or new transmission towers would be located on the R-1 zoned lands. 10 11 Section 3.072 CONDITIONAL USES 12 13

In an R-1 Zone the following uses and their accessory uses are permitted, subject to the 14 requirements of Sections 7.010 through 7.040 inclusive, and upon the issuance of a zoning 15 permit. 16


19 As discussed previously, power transmission lines are specifically defined as “utility 20 facilities” and are therefore allowed as a conditional use on R-1 zoned lands; however, Umatilla 21 County’s Response to Amended Notice of Intent dated September 23, 2013, indicated that “[n]o 22 land use permit is required to co-locate and upgrade the transmission line.” As described 23 below, the reconductored transmission line would meet all conditional use requirements. UCDC 24 §§ 7.030 and 7.035 address time limits for initiating construction and re-filing conditional use 25 permit applications. These are not substantive standards or procedures related to the approval 26 of a Conditional Use Permit and, therefore, are not applicable to this review. 27 28 Section 3.073 DIMENSIONAL STANDARDS 29 30

In an R-1 Zone, the following dimensional standards shall apply: 31 32

(1) Minimum Lot Area for Residential Use: 4 acres; 33 (2) Minimum Lot Area for Nonresidential Use: As determined by the Department of 34 Environmental Quality to be necessary for the protection of public health; 35 (3) Setback: No building shall be located closer than 20 ft. from a lot line. 36

37 The lot area requirements are not applicable because no new lots or dwellings would be 38 constructed in R-1 zoned lands. The setbacks are also inapplicable because no new buildings or 39 transmission towers would be constructed in the R-1 zone. 40 41 E. Article 7, Conditional Uses 42


1 Section 7.010 REGARDING CONDITIONAL USES 2 3

Conditional uses listed in this ordinance may be permitted, enlarged, or altered upon 4 authorization by the Hearings Officer in accordance with the standards and procedures set 5 forth in Sections 7.010 through 7.040 inclusive. 6

7 Under ORS 469.504(1)(b), the Council must determine the facility’s compliance with the 8 applicable approval standards for a conditional use. As noted above and described below, the 9 reconductored transmission line meets all conditional use requirements. UCDC §§ 7.030 and 10 7.035 address time limits for initiating construction and re-filing conditional use permit 11 applications. These are no substantive standards or procedures related to the approval of a 12 Conditional Use Permit, and therefore, UCDC time limits are not applicable to this review. 13 14 Section 7.020 PROCEDURE FOR TAKING ACTION ON A CONDITIONAL USE 15 APPLICATION 16 17

The procedure for taking action on a conditional use application shall be as follows: 18 19

(1) A property owner or the Planning Commission may initiate a request for a conditional 20 use by filing an application with the secretary of the Planning Commission, using forms 21 prescribed pursuant to Section 10.030. 22

23 Because the applicant has selected “Path B” under ORS 469.504(1)(b), upon approval of the 24 ASC, pursuant to ORS 469.401(3), the county must issue the approved permits, upon 25 submission by the certificate holder of the proper application form and payment of fees, 26 without hearing or other proceedings. 27 28

(2) Within 60 days of receipt of the application, the Hearings Officer of the county shall 29 hold a hearing and take action thereon. Applicant shall be given written notice of the 30 decision by the Planning Director or the secretary of the Planning Commission within five 31 days of the decision, 32

33 These procedures do not apply, because the applicant has elected a “Path B” determination by 34 the Council. Pursuant to ORS 469.401(3), after issuance of a site certificate, the affected county 35 must promptly issue the permits addressed in the site certificate, upon submission of the 36 applicant of the proper application and fees, but without hearings or other proceedings. 37 38

(3) A Conditional Use Permit shall not be approved unless the proposed use of the land 39 would be in compliance with the Umatilla County Comprehensive Plan. 40

41


Compliance with the applicable policies of the Umatilla County Comprehensive Plan are 1 discussed above. 2 3

(4) An applicant granted a conditional use permit must also obtain a zoning permit 4 before commencing construction. 5

6 As discussed above, the applicant would obtain a zoning permit for each tax lot where new 7 construction occurs. 8 9 Section 7.040 SUGGESTED STANDARDS GOVERNING CONDITIONAL USES 10 11

In addition to the standards of the zone in which the conditional use is located and the 12 general standards of this ordinance, the Hearings Officer shall consider the following 13 additional requirements: 14

15 (1) Conditional uses, generally: 16

17 (a) Yards: In an F-2, F-4, F-5, R-2, R-3 and R-4 Zone, yards may be at least two-thirds 18 the height of the principal structure. In any zone additional yard requirements may 19 be imposed. 20

21 The proposed transmission line crosses F-2 zoned lands, but these provisions are inapplicable 22 because no new structures would be constructed within the F-2 zone. 23 24

(b) Limitations on access to property and on openings to buildings: 25 26

(14) Radio, television tower, utility station, or substation: 27 28 29

(a) In a residential zone, all equipment storage on the site may be within an enclosed 30 building; 31

32 The small portion of R-1 zoned lands crossed by the transmission line are either located in the 33 Umatilla River or within the ROW of I-82. However, the applicant is not proposing to store any 34 equipment in this zone. 35 36

(b) The use may be fenced and provided with landscaping; 37 38 Security fencing would be provided around the step-up substation, but as explained in the ASC, 39 landscaping would be inappropriate because the area around the substation site is unoccupied 40 except for other utility facilities, including transmission towers and the McNary Substation. 41 42


(c) The minimum lot size for a public utility facility may be waived on finding that the 1 waiver will not result in noise or other detrimental effect to adjacent property; 2

3 As stated in the ASC, no new lots would be created, therefore, this provision is not applicable. 4 Nonetheless, the lot of the step-up substation is 23.99 acres, which would provide adequate 5 buffering to protect the public health from the noise associated with the step-up substation. 6 Further there are no dwelling within 1,500 feet of the step-up substation site. 7 8

(d) Transmission towers, poles, overhead wires, pumping stations, and similar gear 9 hall be so located, designed, and installed as to minimize their conflict with scenic 10 values, 11

12 The majority of the transmission line would be located within an existing ROW and would utilize 13 the existing transmission towers, thereby preventing any additional impacts on scenic values 14 due to the construction of the proposed facility. A new connecting structure and step-up 15 substation would be constructed in the vicinity of the McNary Substation, along with an 16 underground line. However, as stated in the ASC, the step-up substation’s location near the 17 McNary Substation in an area with existing transmission facilities, which minimizes the impact 18 from that facility on scenic resources. The applicant provided additional information regarding 19 the facility’s impact on scenic resources in Exhibit R of the ASC, which is addressed below under 20 the Council’s Scenic Resource Standard. 21 22 F. City of Umatilla Zoning 23 24 The transmission line currently crosses City of Umatilla lands zoned Neighborhood Commercial 25 (NC), Single Family Residential (R1), and Multi-Family Residential (R2). The transmission line is 26 permitted as a “Community Service” use, which is a conditional use in each of these zones. 27 28 Neighborhood Commercial (NC) 29 30

10-4A-3: CONDITIONAL USES PERMITTED: 31 Community Services uses as provided by Chapter 6 of this Title. 32

33 Residential, Single Family (R1) 34 35

10-3A-3: CONDITIONAL USES PERMITTED: 36 The following primary uses and their accessory uses may be permitted when authorized in 37 accordance with the requirements of Chapter 12 of this Title: 38

39 Community Services uses as provided by Chapter 6 of this Title. 40

41 Residential, Multi-Family (R2) 42


1 10-3B-3: CONDITIONAL USES PERMITTED: 2 The following uses and their accessory uses may be permitted subject to the provisions of 3 Chapter 12 of this Title: 4

5 Community Services uses as provided by Chapter 6 of this Title. 6

7 Community Service (CS) 8 9 10-6-1: COMMUNITY SERVICES USES: 10

11 The purpose of this Chapter is to provide a procedure and standards for the review of special 12 uses which, by reason of their public convenience, necessity, unusual character, technical 13 need or effect on the neighborhood, may be appropriate in any district but not suitable for 14 listing within the other sections of this Title. The following uses may be approved as 15 Community Services uses: 16

17 Utility facility, including generating facilities, substations, telephone switching stations, and 18 other facilities required for the transmission of power or communications. 19

20 The proposed reconductored transmission line is required for the transmission of power and is 21 a “utility facility.” As a utility facility, the transmission line may be approved as a Community 22 Service use. 23 24 10-6-2: PROCEDURE: 25 26

Community Services uses shall be considered a Type III review process. 27 28

(A) Application: All Community Services uses shall be reviewed as conditional uses according 29 to the procedures and criteria of Chapters 12 and 14 of this Title. Plans shall be submitted 30 for the site that identify the location of the use, building, parking area, landscaping, 31 screening, and any other features on the site. The applicant shall submit a narrative that 32 explains why the use is necessary for the community and why the particular site best serves 33 the community. The narrative shall also consider impacts upon surrounding uses and 34 possible mitigating measures, including, but not limited to, the location of parking, effects of 35 off-site parking, traffic generation, street access points, buffering and screening, noise, 36 illumination controls, structure height, hours of operation, crime prevention, design 37 elements such as scale, structural design, form and materials, signage, and any other 38 impacts unique to the specific use. 39

40 The approval of a Community Services use is for a specific use. Any change or expansion of 41 an approved use shall be subject to the review procedures of this Chapter. 42


1 As explained in the ASC, the applicant is proposing to utilize the existing transmission line 2 infrastructure within the City of Umatilla. No parking would be required for the transmission 3 line because access to the transmission line would only be required for temporary and 4 intermittent maintenance activities. Given the linear nature of the transmission line located 5 entirely within an existing ROW, and the use of existing transmission towers, no visual impact 6 would result from the proposed facility’s use of the existing towers and upgrade of the line that 7 would require mitigation through landscaping or screening. As provided in the ASC, there is no 8 feasible route to transmit power from the energy facility site to the McNary Substation without 9 crossing the City of Umatilla. Utilization of the existing ROW and existing transmission towers 10 within the City limits would, however, minimize the impact of the transmission line and, 11 therefore, best serves community interests. By utilizing the existing ROW and towers, the 12 transmission line would not pose any additional visual, noise, traffic, parking, access, or lighting 13 impacts on the community. No new structures would be constructed and any signage required 14 would be limited to that required for public safety notification. 15 16 10-12-1: AUTHORIZATION TO GRANT OR DENY 17 18

A conditional use listed in this Title, may be permitted, denied, enlarged or altered upon 19 authorization of the Planning Commission in accordance with the criteria and standards of 20 this Chapter and Type III procedures in Chapter 14 of this Title. Site review is required for 21 conditional uses. 22

23 (A) Approval Criteria: The applicant shall carry the burden of proof in demonstrating that the 24 following review criteria are satisfied, in addition to any specific criteria and standards in 25 this Chapter, other applicable chapters of this Title, and this Code. If any of the following 26 criteria and other applicable standards cannot be satisfied by requiring conditions with the 27 approval, the use shall be denied: 28

29 (1) Applicable Plans: The conditional use application complies with applicable policies of 30 the Umatilla City Comprehensive Plan. Compliance with the Umatilla City 31 Comprehensive Plan is discussed below. 32 33 (2) Code Provisions: The proposal complies with all applicable provisions of this Code, 34 including, but not limited to, provisions of this Chapter, the base district, and site review, 35 as well as any other applicable provisions of this Code. 36

37 The transmission line would comply with all applicable provisions of the Umatilla City 38 Code and is permitted as a conditional use in the R1, R2, and NC zones. 39 40


(3) Use Characteristics: If the proposed use is a community service, application shall 1 include evidence to demonstrate that the proposed use is needed within the community 2 to provide a social or technical benefit. 3

4 The existing transmission line ROW passes through the City of Umatilla. Use of this ROW and 5 existing transmission towers eliminates or mitigates all impacts of the transmission line to the 6 local community. As discussed above, the transmission line is a utility facility defined as a 7 Community Service Use in the Umatilla City Code. 8 9

(4) Site Characteristics: The site is appropriate for the proposed use, considering, but not 10 limited to, the following factors: neighboring land use, adequacy of transportation 11 facilities and access, site size and configuration, adequacy of public facilities. 12

13 The length of the proposed reconductored transmission line through the City of Umatilla would 14 be located within the existing right of way and would utilize the existing transmission towers. 15 As explained in the ASC, a portion of the R1 and R2 zones currently crossed by the transmission 16 line is developed with single family homes. However, all dwellings are set back from the existing 17 transmission corridor along Powerline Road. The NC zoned property crossed by the 18 transmission line is undeveloped. Nonetheless, existing or potential future neighboring lands in 19 any zone would not be affected by the reconductored transmission line because the 20 reconductored line does not require new towers and the new line would have no different 21 impact than the transmission lines currently in place, which would not result in additional 22 transportation impacts. 23 24

(5) Impacts On The Neighborhood: Potential impacts on neighboring properties shall be 25 identified. Mitigating measures shall be identified for unavoidable adverse impacts 26

27 The entire length of the transmission line through the City of Umatilla would be located within 28 an existing ROW and would utilize existing transmission towers, which prevents any additional 29 long term impact on neighboring properties. Reconductoring activities would be conducted 30 within the ROW and the reconductored transmission line would comply with all Council 31 standards for transmission lines, including the provisions of OAR 345-024-0090, which require 32 alternating current electric fields not to exceed 9 kV per meter at 1 meter above the ground 33 surface in areas accessible to the public, and induced currents to be as low as reasonably 34 achievable. Compliance with OAR 345-024-0090 is discussed in more detail below. 35 36

(6) Impacts On The Community: Potential impacts on the community shall be identified, 37 including, but not limited to, public facilities, land supply within the particular zoning 38 district, impact on housing, etc. Potential benefits of a proposed use may outweigh 39 potential impacts, but such benefits and impacts should be identified. Unavoidable 40 adverse impacts should be mitigated to the extent possible. 41

42


The entire length of the transmission line through the City of Umatilla is proposed to be located 1 within the existing transmission line ROW and would utilize the existing transmission towers, 2 preventing any additional impacts on the community. The supply of land within the R1, R2, and 3 RC zones would not be affected by the transmission line because no new transmission towers 4 would be constructed, nor would the transmission ROW be expanded within the limits of the 5 City of Umatilla. 6 7

(B) Conditions Of Approval: Conditions of approval for mitigating measures shall be clearly 8 related to the identified impact or impacts. If complex conditions of approval are considered 9 necessary, this is an indication that the proposed use may not be appropriate for the 10 proposed site. Conditions of approval may include, but are not limited to, the following: 11

12 (1) Increasing the required lot size or yard dimension. 13

14 This provision is inapplicable because no additional transmission towers would be constructed 15 within the City of Umatilla, and no new lots would be created. 16 17

(2) Limiting the height, size, or location of the building or use 18 19 This provision is not applicable because no new buildings would be constructed as part of the 20 transmission line and the transmission line would utilize the existing transmission towers within 21 the limits of the City. 22 23

(3) Controlling the location and number of vehicle access points. 24 25 No new vehicle access points would be required because the transmission line would be 26 located entirely within the existing right of way and would utilize the existing transmission 27 towers. 28 29

(4) Increasing the street width and requiring street improvements. 30 31 No transportation impacts are anticipated that would require street improvements because the 32 transmission line would be located entirely within an existing ROW and would utilize existing 33 transmission towers within the limits of the City of Umatilla. 34 35

(5) Increasing or decreasing the number of required off-street parking spaces. 36 37 The transmission line would be located entirely within an existing ROW, would utilizeexisting 38 transmission towers within the limits of the City of Umatilla, and would not require oraffect off-39 street parking. As explained in the ASC, no off-street parking spaces are required because the 40 transmission line requires only temporary and intermittent maintenance activities along a 41


lengthy linear infrastructure facility, and sufficient parking area is available within the ROW to 1 satisfy these temporary needs.132 2 3

(6) Limiting the number, size, location, and lighting of signs. 4 5 Because the transmission line would be located entirely within an existing ROW and utilize 6 existing transmission towers within the limits of the City of Umatilla, signage would be limited 7 to that necessary to meet required public safety notice requirements. 8 9

(7) Requiring diking, fencing, screening, landscaping, or other facilities designed to 10 protect adjacent or nearby properties. 11

12 The newly reconductored transmission line would be located within an existing ROW and utilize 13 existing transmission towers within the limits of the City of Umatilla. Thus, the reconductored 14 transmission line would have no visual impact distinguishable from current conditions, and no 15 diking, fencing, screening, or landscaping is required. 16 17

(8) Designating sites for open space. 18 19 The newly reconductored transmission line would have no long-term impact on open space. No 20 new open space needs to be designated because the transmission line would be located within 21 an existing ROW and utilize existing transmission towers within the limits of the City of 22 Umatilla. 23 24

(C) Existing Conditional Use: Any conditional use existing prior to the effective date of this 25 Title, and classified in this Title as a conditional use, shall not be changed with respect to the 26 use, site, or structure, unless the change conforms with the current requirements for 27 conditional use. 28

29 The reconductored transmission line would not change the use, site, or structure of any existing 30 conditional uses because it would be located within an existing ROW and utilize existing 31 transmission towers within the limits of the City of Umatilla. 32 33 10-12-2: STANDARDS GOVERNING CONDITIONAL USES 34 35

In addition to the standards of the district in which the conditional use is located and the 36 other standards of this Title, the following criteria and standards shall apply to the 37 specifically identified conditional use: 38

39



(D) Utilities, Storage Tanks, And Towers For Transmission Of Radio Waves For Cellular 1 Communications And Similar Facilities: The Planning Commission shall determine that the 2 proposed site is located to best serve the intended area and that impacts on surrounding 3 properties and appropriate mitigating measures are identified. Such facilities shall be 4 located, designed, and installed with regard for aesthetic values. 5

6 As explained in the ASC, the transmission line location was selected to maximize use of the 7 existing ROW and transmission towers and to reduce the need for construction of new 8 transmission tower facilities.133 There would be no additional impact on aesthetic values within 9 the R1, R2, or NC zones because no new transmission towers are to be constructed within the 10 limits of the City of Umatilla and the line would not be visually distinct from the existing line. 11 12 G. City of Umatilla Comprehensive Plan 13 14 City of Umatilla Comprehensive Plan 15 16

SECTION 1.0 CITIZEN INVOLVEMENT GOAL 17 To promote a program that facilitates the flow of information and ideas between the City 18 and its residents and insures the opportunity for citizen involvement in the planning process. 19

20 The Council’s review of an ASC is a public process that allows and provides opportunities for the 21 public to submit comment and participate. On April 14, 2015, the department issued a public 22 notice of the Draft Proposed Order to the Council’s general mailing list and to adjacent property 23 owners and published notice of the Draft Proposed Order in the East Oregonian, a newspaper 24 of general circulation in the area of the facility. The public notice and newspaper notice 25 contained an announcement of a public hearing, which the department held on May 14, 2015 26 in Hermiston, Oregon. The comment deadline and close of the public record on the Draft 27 Proposed Order was May 14, following completion of the public hearing. Following issuance of 28 the Proposed Order, persons who commented on the Draft Proposed Order had an opportunity 29 to request party status in the contested case. However, no requests for party status in this 30 contested case proceeding were received by the deadline. 31 32

SECTION 2.0 LAND USE PLANNING GOAL 33 To provide a process and basis for decisions and actions related to the existing and future 34 use of the land, and insure the orderly development of the City of Umatilla. 35

36 The Council’s site certificate application process provides a process and basis for decisions and 37 actions related to land use. 38 39

SECTION 3.0 AGRICULTURAL LANDS GOAL 40

133 ASC, Exhibit K, K-99.-


To maintain agricultural lands consistent with the need for agricultural products. 1 2 The transmission line does not cross any agricultural lands within the City of 3 Umatilla. 4 5

SECTION 5.0 NATURAL RESOURCES, SCENIC AND HISTORIC AREAS, AND OPEN SPACES GOAL 6 To protect and enhance through proper use and development the open spaces, scenic and 7 historic areas, and natural resources of the area. 8

9 The use of the existing transmission line ROW and transmission towers would necessarily avoid 10 any new impact on open spaces, scenic and historic areas, and the natural resources of the area 11 because no new construction would be required. 12 13

SECTION 6.0 AIR, WATER AND LAND RESOURCES QUALITY GOAL 14 To maintain and improve the quality of the air, water, and land in the Umatilla area. 15

16 The use of the existing transmission line ROW and transmission towers would minimize any 17 impact on the air, water, and land in the Umatilla area. 18 19

SECTION 7.0 AREAS SUBJECT TO NATURAL DISASTERS AND HAZARDS GOAL 20 To protect life and property from natural disasters and hazards. 21

22 The use of the existing transmission line ROW and transmission towers would minimize any 23 increased risk to life or property from natural disasters and hazards. 24 25

SECTION 8.0 RECREATIONAL NEEDS GOAL 26 To provide programs and facilities to meet the recreational needs of area residents and 27 visitors. 28

29 The use of the existing transmission line ROW and transmission towers would avoid any new 30 impact on the recreational opportunities for residents and visitors to the City of Umatilla. 31 32

SECTION 9.0 ECONOMIC DEVELOPMENT GOAL 33 To provide for the economic diversification and stability of the area. 34

35 As stated in the ASC, reconductoring the transmission line would provide temporary 36 construction jobs within the City of Umatilla. 37 38

SECTION 10.0 HOUSING GOAL 39 To increase the supply of housing commensurate with population growth, and the peoples’ 40 needs. 41

42


The use of the existing transmission line ROW and transmission towers would minimize the 1 impact of construction and therefore would minimize the necessary temporary housing supply 2 impact on the City of Umatilla. 3 4

SECTION 11.0 PUBLIC FACILITIES AND SERVICES GOAL 5 To coordinate and arrange for the provision of public facilities and services in an efficient, 6 orderly, and timely manner. 7

8 The use of the existing transmission line ROW and transmission towers would minimize any 9 impact on the public facilities and services in the City of Umatilla. 10 11

SECTION 12.0 TRANSPORTATION GOAL 12 To develop and encourage a safe, convenient and economic transportation system. 13

14 According to the ASC, the development of the Project would have minor traffic impacts in the 15 City of Umatilla during construction, and would have no permanent impacts on the City’s 16 transportation system. The construction of the Energy Facility Site and the step-up substation 17 would occur outside the city limits and are not expected to have measurable traffic impacts 18 within the City of Umatilla. The applicant anticipates that the reconductoring of the 19 transmission line within the city limits may have minor, temporary impacts on traffic in the 20 immediate vicinity of reconductoring operations, however, there would be no long-term 21 impacts on traffic in the City of Umatilla. 22 23

SECTION 13.0 ENERGY CONSERVATION GOAL 24 To conserve energy. 25

26 As stated in the ASC, the development of the transmission line is essential to the development 27 of the Station, which would provide load balancing for variable wind generated electricity, 28 supporting the electric power grid and encouraging further renewables development in the 29 area.134 30

31 SECTION 14.0 URBANIZATION GOAL 32 To provide for an orderly and efficient transition from rural to urban land use. 33

34 By using the existing power corridor and transmission towers, the project would avoid any 35 impact on the rate of urbanization in the City of Umatilla. 36 37 Based on the foregoing analysis, the Council finds that the portion of the facility located in the 38 City of Umatilla satisfies all applicable code and comprehensive plan requirements. 39 40



H. Federal Land Management Plans 1 2 OAR 345-021-0010(1)(k)(D) If the proposed facility will be located on federal land: 3 4

(i) Identify the applicable land management plan adopted by the federal agency 5 with jurisdiction over the federal land. 6 (ii) Explain any differences between state or local land use requirements and 7 federal land management requirements; 8 (iii) Describe how the proposed facility complies with the applicable federal land 9 management plan; 10 (iv) Describe any federal land use approvals required for the proposed facility and 11 the status of application for each required federal land use approval; 12 (v) Provide an estimate of time for issuance of federal land use approvals; and 13 (vi) If federal law or the land management plan conflicts with any applicable 14 state or local land use requirements, explain the differences in the conflicting 15 requirements, state whether the applicant requests Council waiver of the land 16 use standard described under OAR 345-021-0010(1)(k)(B) and (C) of this 17 subsection and explain the basis for the waiver. 18

19 The proposed step-up substation and a portion of both the transmission line and underground 20 line would be located on property controlled by the Bonneville Power Administration (BPA). 21 The remainder of the underground line and the underground termination structure would be 22 located on property owned by the Bureau of Land Management (BLM) and controlled by the 23 U.S. Army Corps of Engineers (Corps). However, neither the BPA, BLM nor the Corps have a 24 federal land management plan that would be applicable to the project. Therefore, the Council 25 finds that the facility complies with OAR 345-021-0010(1)(k)(D). 26 27

IV.E.2. Land Use: Conclusions of Law 28 29 Based on the foregoing findings and the evidence in the record, the Council finds that the 30 facility complies with each of the applicable substantive criteria identified by the local SAGs 31 and, therefore, complies with the Council’s Land Use Standard. 32 33 IV.F. Protected Areas [OAR 345-022-0040] 34

35 (1) Except as provided in sections (2) and (3), the Council shall not issue a site certificate 36 for a proposed facility located in the areas listed below. To issue a site certificate for a 37 proposed facility located outside the areas listed below, the Council must find that, 38 taking into account mitigation, the design, construction and operation of the facility are 39 not likely to result in significant adverse impact to the areas listed below. References in 40 this rule to protected areas designated under federal or state statutes or regulations are 41 to the designations in effect as of May 11, 2007: 42


1 (a) National parks, including but not limited to Crater Lake National Park and Fort 2 Clatsop National Memorial; 3 4 (b) National monuments, including but not limited to John Day Fossil Bed National 5 Monument, Newberry National Volcanic Monument and Oregon Caves National 6 Monument; 7 8 (c) Wilderness areas established pursuant to The Wilderness Act, 16 U.S.C. 1131 et 9 seq. and areas recommended for designation as wilderness areas pursuant to 43 10 U.S.C. 1782; 11 12 (d) National and state wildlife refuges, including but not limited to Ankeny, Bandon 13 Marsh, Baskett Slough, Bear Valley, Cape Meares, Cold Springs, Deer Flat, Hart 14 Mountain, Julia Butler Hansen, Klamath Forest, Lewis and Clark, Lower Klamath, 15 Malheur, McKay Creek, Oregon Islands, Sheldon, Three Arch Rocks, Umatilla, Upper 16 Klamath, and William L. Finley; 17 18 (e) National coordination areas, including but not limited to Government Island, 19 Ochoco and Summer Lake; 20 21 (f) National and state fish hatcheries, including but not limited to Eagle Creek and 22 Warm Springs; 23 24 (g) National recreation and scenic areas, including but not limited to Oregon Dunes 25 National Recreation Area, Hell’s Canyon National Recreation Area, and the Oregon 26 Cascades Recreation Area, and Columbia River Gorge National Scenic Area; 27 28 (h) State parks and waysides as listed by the Oregon Department of Parks and 29 Recreation and the Willamette River Greenway; 30 31 (i) State natural heritage areas listed in the Oregon Register of Natural Heritage 32 Areas pursuant to ORS 273.581; 33 34 (j) State estuarine sanctuaries, including but not limited to South Slough Estuarine 35 Sanctuary, OAR Chapter 142; 36 37 (k) Scenic waterways designated pursuant to ORS 390.826, wild or scenic rivers 38 designated pursuant to 16 U.S.C. 1271 et seq., and those waterways and rivers listed 39 as potentials for designation; 40 41


(l) Experimental areas established by the Rangeland Resources Program, College of 1 Agriculture, Oregon State University: the Prineville site, the Burns (Squaw Butte) site, 2 the Starkey site and the Union site; 3 4 (m) Agricultural experimental stations established by the College of Agriculture, 5 Oregon State University, including but not limited to: 6 7 Coastal Oregon Marine Experiment Station, Astoria 8 Mid-Columbia Agriculture Research and Extension Center, Hood River 9 Agriculture Research and Extension Center, Hermiston 10 Columbia Basin Agriculture Research Center, Pendleton 11 Columbia Basin Agriculture Research Center, Moro 12 North Willamette Research and Extension Center, Aurora 13 East Oregon Agriculture Research Center, Union 14 Malheur Experiment Station, Ontario 15 Eastern Oregon Agriculture Research Center, Burns 16 Eastern Oregon Agriculture Research Center, Squaw Butte 17 Central Oregon Experiment Station, Madras 18 Central Oregon Experiment Station, Powell Butte 19 Central Oregon Experiment Station, Redmond 20 Central Station, Corvallis 21 Coastal Oregon Marine Experiment Station, Newport 22 Southern Oregon Experiment Station, Medford 23 Klamath Experiment Station, Klamath Falls; 24 25 (n) Research forests established by the College of Forestry, Oregon State University, 26 including but not limited to McDonald Forest, Paul M. Dunn Forest, the Blodgett 27 Tract in Columbia County, the Spaulding Tract in the Mary’s Peak area and the 28 Marchel Tract; 29 30 (o) Bureau of Land Management areas of critical environmental concern, 31 outstanding natural areas and research natural areas; 32 33 (p) State wildlife areas and management areas identified in OAR chapter 635, 34 Division 8. 35 * * * 36

IV.F.1. Protected Areas: Findings of Fact 37 38 The Protected Areas standard requires the Council to find that, taking into account mitigation, 39 the design, construction and operation of the facility are not likely to result in significant 40 adverse impacts to any protected area as defined by OAR 345-022-0040. OAR 345-022-0040(3) 41 provides that subsection (1) does not apply to transmission lines or natural gas pipeline routes 42


within 500 feet of an existing utility right-of-way containing at least one transmission line with a 1 voltage rating of 115 kilovolts or higher or containing at least one natural gas pipeline of 8 2 inches or greater diameter that is operated at a pressure of 125 pounds per square inch gage. 3 The proposed facility’s transmission line and natural gas pipeline are each to be located within 4 existing utility rights-of-way and, consequently, are therefore not subject to the provisions of 5 OAR 345-022-0040(1). 6 7 As established in the project order, the analysis area for protected areas is the area within the 8 site boundary and 20 miles from the site boundary. However, because the transmission line and 9 natural gas pipeline fall under the subsection (3) and are therefore not subject to subsection 10 (1), the facility features included in the analysis area and as part of the site boundary for 11 purposes of the protected areas standard are the energy facility site and the step-up 12 substation. 13 14 The ASC addresses impacts to protected areas in Exhibit L of the ASC. Table F-1 below shows 15 the identified protected areas within the analysis area, as presented in the ASC. 16 17 18

Table F-1 Distance of Protected Areas from the Energy Facility Site and Step-up Substation

Protected Area1

Distance (miles) and Direction from

the Energy Facility Site


the Step-up Substation

(d) National and state wildlife refuges

Umatilla National Wildlife Refuge 9.43 NW 7.9 W

Cold Springs National Wildlife Refuge 9.57 NE 7.58 SW

McNary National Wildlife Refuge 14.26 NW 9.3 E

(f) National and state fish hatcheries

Irrigon Hatchery 11.33 NW 11.14 SW

Umatilla Hatchery 11.64 NW 11.38 W

(h) State parks and waysides

Hat Rock State Park 11.9 NE 6.54 E

(m) Agriculture experimental stations

Hermiston Agriculture Research and Extension Center

4.01 NE

7.43 SE

(o) Bureau of Land Management Areas Of Critical Environmental Concern

Oregon Trail Area of Critical Environmental Concern

5.85 SE

13.57 SE

(p) State wildlife areas and managements areas

Coyote Springs Wildlife Area 12.9 NW 16.32 SW

Irrigon Wildlife Area 7.6 N 1.98 SW

Power City Wildlife Area 7.01 NE 1.58 SE


Table F-1 Distance of Protected Areas from the Energy Facility Site and Step-up Substation

Protected Area1


the Energy Facility Site


the Step-up Substation

Note: 1. There are no protected areas meeting the following criteria under OAR 345-022-0040(1):

(a), (b), (c), (e), (g), (i), (j), (k), (l), and (n).

1 As demonstrated in the table, the majority of the listed protected areas are located at least 4 2 miles from the energy facility and step-up substation. The detailed impacts from facility noise, 3 traffic, water use and wastewater disposal, as well as visual impacts from project related 4 structures and air emissions, are discussed below. 5 6

A. Noise 7 8 In Exhibit X the applicant provided information about predicted noise levels resulting from 9 construction and operation of the facility. Because the protected areas closest to the proposed 10 facility site are not designated “quiet areas” or otherwise identified as “noise sensitive 11 receptors,” the DEQ noise regulations at OAR Chapter 340, Division 35 are not applicable. 12 However, while the noise regulations are not applicable to the protection of protected areas, 13 the evidence regarding noise provided by the applicant regarding in Exhibit X is relevant in 14 considering the facility’s potential impacts on the protected areas. 15 16 The closest protected area to the Station is the Hermiston Agriculture Research and Extension 17 Center, which is 4.01 miles northeast of the proposed facility. The nearest protected area to the 18 step-up substation is the Power City Wildlife Area, which is 1.58 miles to the southeast. For 19 context and reference, at a distance of 2,970 feet from the Station and 958 feet from the step-20 up substation site, noise levels would not exceed 50 dBA and the noise level contributions from 21 operation of the Station and step-up substation would not be more than 10 A-weighted 22 decibels above the lowest hourly average measured L50 dBA. As explained in the ASC as a point 23 of comparison, light auto traffic (50 feet away) has a decibel level of 50 dBA.135 24 25 During construction of the Station, at 3,000 feet away from the center of the site the estimated 26 construction noise would be approximately 54.4 dBA. During construction of the step-up 27 substation, the estimated noise level is estimated to be 63.9 dBA at 958 feet away. For 28 reference, as provided in the application, an air conditioning unit 20 feet away has a decibel 29 level of 60 dBA. Based upon the distance of the protected areas from the station and the step-30 up substation and because operational noise levels associated with the noise levels would be 31 below 50 dBA, the Council finds that operational noise of the facility will not result in a 32 significant adverse impact to any protected area. 33

135 ASC, Exhibit X, Attachment A.


1 Further, while construction noise levels attributable to the Station and step-up substation could 2 measure above 50 dBA as evidenced with the identified measurement points, the Council finds 3 that construction noise will not result in a significant adverse impact to the identified protected 4 areas because the identified protected areas are located further from the facility than the 5 identified measure points. Since the noise decibel level will be even lower at the identified 6 protected areas, this further supports the conclusion that the construction noise will not result 7 in a significant adverse impact to the protected areas. Additionally, the construction noise will 8 be temporary, and noise at the worst levels identified will occur even less frequently. 9 10

B. Traffic 11 12 As explained in the ASC, the primary roads to provide access to the Station site during 13 construction and operations would be Interstate 84, Interstate 82, Westland Road and Lamb 14 Road. At the expected peak of construction, the Station would generate approximately 196 15 total trips during morning and afternoon peak traffic hour, while operation of the Station would 16 generate only eight total trips during morning peak hours and 12 total trips during afternoon 17 peak traffic hours.136 The ASC explains that the primary road providing access to the step-up 18 substation would be U.S. Route 730; however, the construction effort necessary for the step-up 19 substation would be substantially less than that required at the Station site and no full-time 20 employees would be located that the step-up substation site. 21 22 The roads immediately adjacent to or near protected areas in the analysis area include: 23 24

US Route 730—immediately adjacent to McNary Wildlife Refuge, Hat Rock State Park, 25 and Irrigon Wildlife Area; 1.9 miles southwest of Irrigon Hatchery,0.65 miles southwest 26 of Umatilla National Wildllife Refuge 27 28

US Route 395—immediately adjacent to Power City Wildlife Area 29 30

Interstate 84—immediately adjacent to Coyote Springs Wildlife Area 31 32

Interstate 82—1.2 miles east of Irrigon Wildlife Area; and 33 34

Washington State Route 14—immediately adjacent to Umatilla National Wildlife Refuge 35 36

Traffic generated during construction and operation of the project would be concentrated at 37 the intersections of Interstate 82 and 84, Westland Road and Lamb Road. Beyond the vicinity of 38 the site boundary, traffic would become dispersed and different routes utilized; however, even 39 assuming all peak construction traffic (196 additional vehicle trips) drove the same route 40

136 ASC, Exhibit L, L-5.


adjacent to a protected area, the impact would still be minimal and insignificant based upon 1 the evidence provided by the applicant. According to the latest Oregon Department of 2 Transportation and Washington State Department of Transportation data on Average Annual 3 Daily Traffic, worst case project related traffic would constitute the following impacts: 4 5

Interstate 82—would see an increase of 1.1% 6 7

Interstate 84—would see an increase of 1.1% 8 9

U.S. Route 730—would see an increase of 2% 10 11

U.S. 395—would see an increase of 0.9% 12 13

Washington State Route 14—would see an increase of 4.2% 14 15

Based upon the minimal impacts resulting from the worst–case scenario of project related 16 traffic, the Council finds that the expected increase in daily traffic resulting from the 17 construction and operation of the facility is unlikely to result in a significant adverse impact to 18 any protected areas. 19

20 C. Water Use and Wastewater Disposal 21

22 The applicant provided information regarding the facility’s proposed water use in Exhibit O of 23 the ASC. As discussed in greater detail in Section IV.R below, the applicant proposes to obtain 24 all water necessary for construction and operation of the Station from the Port of Umatilla 25 under an existing water right. Further, potable water demand is anticipated to be less than 26 5,000 gallons per day and thus would not require a groundwater permit. Therefore, no new 27 permits are required nor are any permits required to be transferred or modified to supply the 28 water needs of the project.137 Thus, because the facility would use existing sources of water 29 and no new permits would be required for potable water use construction and operation of the 30 facility will not have any significant impact the protected areas water needs. 31 32 As explained in the ASC, during construction wastewater would be generated through (a) 33 stormwater, (b) washing trucks and equipment, (c) testing and commissioning, and (d) human 34 waste. The applicant proposes to direct construction stormwater and wash water to the onsite 35 stormwater detention basin. The applicant proposes to truck wastewater generated during 36 testing and commissioning either offsite for processing and disposal or route it to the HPG for 37 supplemental cooling water makeup water. Human waste would be collected in portable toilets 38 and transported to a licensed sewage treatment plant.138 Based upon the identified 39

137 ASC, Exhibit L, L-6. 138 ASC, Exhibit L, L-6.


management techniques, no wastewater would be disposed of in the vicinity of any protected 1 area as it will be retained onsite, trucked offsite and processed, or reclaimed for reuse at HGP 2 before being land applied by Lamb Weston. In addition, during construction, the applicant 3 would be subject to compliance with its NPDES #1200-C permit, which includes the 4 implementation of an Erosion and Sediment Control Plan that will include best management 5 practices to reduce runoff and further minimize any potential impacts to protected areas from 6 stormwater runoff. 7 8 During operations, wastewater would be generated from (a) process water, including cooling 9 tower blow-down, (b) wash water from occasional sump cleanouts and combustion turbine 10 washing, and (c) sanitary waste. As explained in the ASC, the applicant proposes to route 11 wastewater from process water to the HGP as makeup water for that facility’s cooling 12 towers.139 However, should the applicant not be able to send reclaimed water to the HGP for 13 reuse, it proposes to use a zero liquid discharge system to process, recycle and reclaim water 14 onsite. Wash water from sump cleanouts would be transported by a wastewater vender for 15 treatment and disposal at the Oil Re-Refining Company of Oregon, Inc., as it is deemed 16 nonhazardous. Further, as explained in Exhibit V, sanitary waste would be collected and treated 17 in an onsite septic field. Consequently, operational wastewater would not impact any protected 18 area as it would not be disposed of or discharged in the vicinity of any protected areas as it 19 would be reclaimed and reused at HGP, recycled and reclaimed onsite via the zero liquid 20 discharge system, or transported offsite for treatment and disposal. Based upon the proposed 21 wastewater management techniques, the Council finds that water use and wastewater disposal 22 from the construction and operation of the facility will result in a significant adverse impact to 23 protected areas. 24 25

D. Visual Impacts 26 27

As explained in the ASC, the most prominent visible features of the Station would be the 90 28 foot emissions stacks, a 40 foot cooling tower and the plume generated by the cooling tower. 29 The step-up substation would be approximately 20-feet high. Based upon the view shed 30 analysis conducted by the applicant, the Station’s emissions stacks would be potentially visible 31 from portions of the Oregon Trail Area of Critical Environmental Concern, the Hermiston 32 Agriculture Research and Extension Center, the Cold Springs National Wildlife Refuge, Hat Rock 33 State Park and McNary National Wildlife Refuge. The step-up substation would potentially be 34 visible from portions of the Umatilla National Wildlife Refuge, the Irrigon Wildlife Area, and the 35 Irrigon and Umatilla Hatcheries. 36 37 However, as discussed in the ASC, while the analysis conducted by the applicant took into 38 consideration the area topography and structure height, the analysis did not consider the 39 existing structures in the area and therefore the results of the ‘bare earth’ analysis represent 40

139 ASC, Exhibit L, L-6.


conservative findings. In fact, the Station would not be located in a previously undisturbed view 1 shed. As explained in the ASC, the HGP and the Lamb-Weston Facilities are both located 2 adjacent to and directly north and west of the proposed station site. Although the Umatilla 3 National Wildlife Refuge, McNary National Wildlife Refuge, and the Irrigon and Umatilla 4 Hatcheries are all located northwest of the Station, and the Irrigon Wildlife Area is directly 5 north of the facility, the existing industrial facilities between the protected areas and the 6 Station would obscure views and minimize the visual impact of the Station. In addition, the 7 facility’s stacks would be located adjacent to the stacks of the Hermiston Generating Plant, 8 which are approximately 150-175 feet high.140 Consequently, the facility’s most visible structure 9 would not be in high contrast to the surrounding structures. Further, as explained in the ASC, 10 the step-up substation would be located adjacent to and directly south of the larger McNary 11 Substation, which would block views of the step-up substation from the north, north-east and 12 north-west. Urban development of the City of Umatilla would also block views from points to 13 the west and southwest, according to the ASC, which includes the protected areas cited above 14 as potentially impacted.141 15 16 In addition to structural visual impacts, the applicant also provided a plume analysis in Exhibit Z 17 that discusses the potential impacts of the facility’s plume on protected areas. As explained in 18 that analysis, the plume may be occasionally visible from the nearest protected area, the 19 Hermiston Agriculture Research and Extension Center. The plume would be most visible during 20 the late fall and winter months when the cloud cover is present; however, the occurrence of 21 long visible plumes is expected to be minimal because of the ambient weather conditions and 22 cloud cover.142 Therefore, a significant adverse visual impact on a protected area is not 23 anticipated. Further, the nearest Class I area to the station is located over 133 miles from the 24 Station and the Columbia River Gorge National Scenic Area is located approximately 121 miles 25 away at its nearest distance. The applicant must obtain a Prevention of Significant 26 Deterioration/Air Contamination Discharge Permit from DEQ. Review authority of the 27 ACDP/PSD permits was delegated to DEQ by the U.S. Environmental Protection Agency under 28 the federal Clean Air Act. The applicant submitted the ACDP/PSD application’s to DEQ on 29 September 12, 2013 and included a copy of the application in the ASC.143 Therefore, because of 30 the distance of the facility from Class I areas as well as the required ACDP/PSD permit, the 31 Council concurs with the applicant’s assessment that the Station will have a negligible visual 32 impact on these areas.144 33

140 ASC, Exhibit L, L-8. 141 ASC, Exhibit L, L-8. 142 ASC, Exhibit L, L-9. 143 Included in Exhibit E as well is a letter from the Oregon Department of Environmental Quality, noting

that the application had been received and no additional information was needed at that time. 144 A comment submitted in response to the DPO requests that a condition be included to protect the

Oregon Trail and other historic trails recognized in Oregon. The comment did not cite any applicable Council standard, provide any specific concerns regarding the DPO, or request particular revisions of the DPO. Based upon the evidence provided in the ASC, the proposed facility would not result in a significant adverse impact


1 Based upon the evidence in the record, the Council finds that the facility is not located in any 2 protected areas listed in OAR 345-022-0040 and that the design, construction and operation of 3 the facility will not result in significant adverse impacts to any protected area in the analysis 4 area. 5 6

IV.F.2. Protected Areas: Conclusions of Law 7 8 Based on the foregoing findings and the evidence in the record, the Council concludes that 9 taking into account mitigation, the design, construction and operation of the facility are not 10 likely to result in significant adverse impacts to any protected areas, in compliance with the 11 Protected Area Standard. 12 13 IV.G. Retirement and Financial Assurance [OAR 345-022-0050] 14 15 To issue a site certificate, the Council must find that: 16

17 (1) The site, taking into account mitigation, can be restored adequately to a useful, non-18 hazardous condition following permanent cessation of construction or operation of the 19 facility. 20 21 (2) The Applicant has a reasonable likelihood of obtaining a bond or letter of credit in a 22 form and amount satisfactory to the Council to restore the site to a useful, non-23 hazardous condition. 24

25 IV.G.1. Retirement and Financial Assurance: Findings of Fact 26

27 The Retirement and Financial Assurance Standard requires a finding that the facility site can be 28 restored to a useful, non-hazardous condition at the end of the facility’s useful life, should 29 either the certificate holder stop construction or should the facility cease to operate.145 In 30 addition, the standard requires a demonstration that the applicant can obtain a bond or letter 31 of credit to restore the site to a useful, non-hazardous condition. 32 33

A. Retirement 34 35 The applicant has indicated that it intends to operate the facility for as long as a market exists 36 for the electrical energy that it produces. For purposes of the ASC, however, the estimated 37 useful life of the station is 30 years. Under this standard a “useful, non-hazardous condition” is 38 a condition consistent with the applicable local comprehensive land use plan and land use 39

to any identified trail under the Council’s standards Therefore, in consideration of the evidence provided in the ASC, the Council does not make any revisions or require additional conditions. PERAPPDoc32.

145 OAR 345-022-0050(1).


regulation.146 Pursuant to Condition B.5 (mandatory condition: OAR 345-027-0020(7)), the 1 certificate holder must prevent the development of any conditions on the site that would 2 preclude restoration of the site to a useful, non-hazardous condition to the extent that 3 prevention of such site conditions is within the control of the certificate holder. In addition to 4 B.5, the following mandatory conditions also address the Retirement and Financial Assurance 5 standard: 6 7

Condition G.1 [OAR 345-027-0020(9)]: The certificate holder shall retire the facility if the 8 certificate holder permanently ceases construction or operation of the facility. The 9 certificate holder shall retire the facility according to a final retirement plan approved by 10 the Council, as described in OAR 345-027-0110. The certificate holder shall pay the actual 11 cost to restore the site to a useful, non-hazardous condition at the time of retirement, 12 notwithstanding the Council’s approval in the site certificate of an estimated amount 13 required to restore the site. 14

15 Condition G.2 [OAR 345-027-0020(16)]: If the Council finds that the certificate holder has 16 permanently ceased construction or operation of the facility without retiring the facility 17 according to a final retirement plan approved by the Council, as described in OAR 345-027-18 0110, the Council shall notify the certificate holder and request that the certificate holder 19 submit a proposed final retirement plan to the department within a reasonable time not to 20 exceed 90 days. If the certificate holder does not submit a proposed final retirement plan by 21 the specified date, the Council may direct the department to prepare a proposed final 22 retirement plan for the Council’s approval. Upon the Council’s approval of the final 23 retirement plan, the Council may draw on the bond or letter of credit described in OAR 345-24 027-0020(8), and Condition G.4, to restore the site to a useful, non-hazardous condition 25 according to the final retirement plan, in addition to any penalties the Council may impose 26 under OAR Chapter 345, Division 29. If the amount of the bond or letter of credit is 27 insufficient to pay the actual cost of retirement, the certificate holder shall pay any 28 additional cost necessary to restore the site to a useful, non-hazardous condition. After 29 completion of site restoration, the Council shall issue an order to terminate the site 30 certificate if the Council finds that the facility has been retired according to the approved 31 final retirement plan. 32 33

As stated in the ASC, site restoration would be conducted in compliance with the final 34 retirement plan and would consist primarily of dismantling and removing equipment and 35 structures. Related and supporting transmission tower foundations, water and natural gas 36 pipelines could be left in place to serve future industrial uses, consistent with restoring the site 37 to a useful, non-hazardous condition. However, if necessary under the retirement plan, as 38 provided in the ASC, removal of such facilities could and would be accomplished along with the 39 removal of the other structures and equipment on site. 40

146 Port Westward Generating Project, Final Order, pg. 46


1 Hazardous materials may be used onsite. However, as explained in relation the Council’s Soils 2 Standard above and in further detail in the Waste Minimization section below, hazardous 3 materials would be stored in sealable drums or containers in a secure location onsite. Further, 4 the applicant proposes to develop a Hazardous Materials Management Plan to guide the 5 appropriate management of hazardous substances and decrease the potential for releases 6 which may render the site hazardous. Condition D.6 above requires the site certificate holder to 7 develop the Hazardous Materials Management and Monitoring plan prior to beginning 8 construction. Further, hazardous waste would be removed from the site and disposed of 9 through an appropriate waste disposal service provider.147 (See conditions N.4, N.5, and N.6.) 10 11 For the reasons discussed above and subject to compliance with the site certificate conditions, 12 the Council finds that the actions necessary to restore the site to a useful non-hazardous 13 condition are feasible and that the applicant is capable of restoring the site to a useful, non-14 hazardous condition. 15 16

B. Financial Assurance 17 18 OAR 345-022-0050(2) requires that the Council find that the applicant has a reasonable 19 likelihood of obtaining a bond or letter of credit in a form and amount necessary to restore the 20 facility’s site to a useful, non-hazardous condition. The Retirement and Financial Assurance 21 standard protects the State of Oregon and its citizens in the event that the certificate holder 22 fails to perform its obligation to restore the site under any circumstances. The bond or letter of 23 credit must remain in force until the certificate holder has fully restored the site. The following 24 mandatory condition ensures compliance with this requirement: 25 26

Condition G.3 [OAR 345-027-0020(8)]: Before beginning construction of the facility, the 27 certificate holder shall submit to the State of Oregon, through the Council, a bond or letter 28 of credit in a form and amount satisfactory to the Council to restore the site to a useful, 29 non-hazardous condition. The certificate holder shall maintain a bond or letter of credit in 30 effect at all times until the facility has been retired. The Council may specify different 31 amounts for the bond or letter of credit during construction and during operation of the 32 facility. 33

34 The applicant estimates that site restoration would cost approximately $4.560 million, 35 assuming all structures are to be removed from the site.148 Additionally, for the alternative 36 scenario that includes additional structures associated with the zero liquid discharge system, 37 the cost to retire the facility and restore the site is estimated to be $4.621 million.149 The site 38

147 ASC, Exhibit W, W-8. 148 As a reference for estimating cost restoration, the applicant began with the Oregon Department of

Energy’s Site Restoration Cost Estimating Guide as an example for costs to be included. 149 The cost estimates are presented in 2013 dollars.


retirement costs were developed based on order-of-magnitude quantities using in-house 1 information available to Perennial’s engineering firm Burns & McDonnell.150 The following table 2 summarizes the applicant’s estimates: 3 4

Table G-1 Applicant’s Retirement Cost Estimate

General Costs A. PERMITS $2,660

B. MOBILIZATION $31,260

C. ENGINEERING $48,468

D. PROJECT OVERHEAD $328,035

E. HAZARDOUS MATERIALS INSPECTIONS $0

F. PROTECTION $6,230

G. UTILITY DISCONNECTS $2,310

General Costs Subtotal $418,963 Site Construction

A. PRELIMINARY WORK $21,143

B. SITE GRADING $696,442

C. UNDERGROUND UTILITY REMOVAL $73,070

Site Construction Subtotal $790,655

Concrete Wrecking

A. REINFORCED CONCRETE $175,453

B. NON-REINFORCED CONCRETE $0

Concrete Wrecking Subtotal $175,453

Building Wrecking $64,121

Steel Wrecking $12,865

Timber Wrecking $0

Thermal Protection/Liners Wrecking $53,612

Equipment Wrecking $206,888

Mechanical Wrecking $93,203

Electrical Wrecking $263,400

Load & Haul $270,691

Costs Subtotal $2,349,851

Overhead @ 10% $234,985

Profit @ 10% $258,484

Insurance @ 3% $85,300

Specialty Contracts (subcontracted work) $0

Subtotal $2,928,620

150 ASC, Exhibit W, W-3.


Table G-1 Applicant’s Retirement Cost Estimate

Subtotal Adjusted to Current Dollars 2Q 2013 $3,092,396

Performance Bond @ 1% $30,924

Gross Cost (Adjusted) $3,123,320

Administration and Project Management @ 10% $312,332

Future Developments Contingency @ 20% $624,664

Hazardous Materials Management Contingency $500,000

Total Site Restoration Cost (current dollars) $4,560,316

Total Site Restoration Cost (rounded to nearest $1,000) $4,560,000 1


1

Table G-2 Applicant’s Retirement Cost Estimate Alternative Scenario with Zero Liquid Discharge General Costs A. PERMITS $2,660 B. MOBILIZATION $31,260 C. ENGINEERING $48,468 D. PROJECT OVERHEAD $328,035 E. HAZARDOUS MATERIALS INSPECTIONS $0 F. PROTECTION $6,230 G. UTILITY DISCONNECTS $2,310

General Costs Subtotal $418,963 Site Construction A. PRELIMINARY WORK $21,143 B. SITE GRADING $696,863 C. UNDERGROUND UTILITY REMOVAL $73,070

Site Construction Subtotal $791,076 Concrete Wrecking A. REINFORCED CONCRETE $176,173 B. NON-REINFORCED CONCRETE $0

Concrete Wrecking Subtotal $176,173 Building Wrecking $80,969 Steel Wrecking $12,865 Timber Wrecking $0 Thermal Protection/Liners Wrecking $53,612 Equipment Wrecking $208,258 Mechanical Wrecking $93,884 Electrical Wrecking $263,400 Load & Haul $285,915 Costs Subtotal $2,385,116

Overhead @ 10% $238,512 Profit @ 10% $262,363 Insurance @ 3% $86,580

Specialty Contracts (subcontracted work) $0 Subtotal $2,972,571 Subtotal Adjusted to Current Dollars 2Q 2013 $3,138,805

Performance Bond @ 1% $31,388 Gross Cost (Adjusted) $3,170,193

Administration and Project Management @10% $317,019 Future Developments Contingency @ 20% $634,039 Hazardous Materials Management Contingency $500,000

Total Site Restoration Cost (current dollars) $4,621,250 Total Site Restoration Cost (rounded to nearest $1,000) $4,621,000


The Council reviewed the estimate and confirms that the rates and methods assume a 1 conservative site restoration cost for the facility as proposed in the ASC. The Council recognizes 2 that the applicant may need to make adjustments to the design prior to construction of the 3 facility, and that these changes may result in a change to the estimated costs of restoring the 4 facility site. However, the Council finds that the applicant’s cost of $4.560 and $4.621 (should 5 the alternative scenario be necessary) are reasonable estimates of an amount satisfactory to 6 restore the site to a useful, non-hazardous condition. 7 8 To issue the site certificate, the Council must also find that the applicant has a reasonable 9 likelihood of obtaining a bond or letter of credit in a form and amount satisfactory to the 10 Council to restore the site to a useful non-hazardous condition. The applicant provided 11 information about its financial capability in Exhibit M. The applicant proposes to provide a 12 financial assurance bond or letter of credit in a form approved by the Council before beginning 13 construction. In addition, however, the applicant provided a letter from the Bank of Tokyo-14 Mitsubishi, which states that it currently has an existing relationship with Perennial Power 15 Holdings, Inc. and its parent Sumitomo Corporation and that it would be willing to arrange the 16 required letter of credit, subject to further information and internal credit approval.151 17 18 Therefore, based upon the evidence provided, the Council finds that the applicant has 19 demonstrated a reasonable likelihood of obtaining a bond or letter of credit in a form and 20 amount that is satisfactory to the Council. In addition, the Council adopts the following 21 condition to ensure a bond or letter of credit in a form and amount satisfactory to restore the 22 site is submitted: 23 24

Condition G.4: Before beginning construction of the facility, the certificate holder shall 25 submit to the State of Oregon, through the Council a bond or letter of credit naming the 26 State of Oregon, acting by and through the Council, as beneficiary or payee. The initial bond 27 or letter of credit amount for the facility is $4.560 million, without a zero liquid discharge 28 system or $4.61 million with a zero liquid discharge system, depending upon the final design 29 configuration, to be adjusted to the date of issuance, and adjusted on an annual basis 30 thereafter, as described in sub-paragraph (b) of this condition: 31

32 (a) The certificate holder may adjust the amount of the initial bond or letter of credit based 33 on the final design configuration of the facility. Any revision to the restoration costs should 34 be adjusted to the date of issuance as described in (b) and subject to review and approval 35 by the department. 36 37 (b) The certificate holder shall adjust the amount of the bond or letter of credit using the 38 following calculation: 39

151 ASC, Exhibit M, Attachment M-2.


(A) Adjust the amount of the bond or letter of credit (expressed in second quarter 2013 1 dollars) to present value, using the U.S. Gross Domestic Product Implicit Price Deflator, 2 Chain-Weight, as published in the Oregon Department of Administrative Services’ 3 “Oregon Economic and Revenue Forecast” or by any successor agency and using the 4 second quarter 2013 index value and the quarterly index value for the date of issuance 5 of the new bond or letter of credit. If at any time the index is no longer published, the 6 Council shall select a comparable calculation to adjust second quarter 2013dollars to 7 present value. 8 (B) Round the result total to the nearest $1,000 to determine the financial assurance 9 amount. 10

11 (c) The certificate holder shall use an issuer of the bond or letter of credit approved by the 12 Council. 13 14 (d) The certificate holder shall use a form of bond or letter of credit approved by the 15 Council. The certificate holder shall describe the status of the bond or letter of credit in the 16 annual report submitted to the Council under OAR 345-026-0080. The bond or letter of 17 credit shall not be subject to revocation or reduction before retirement of the facility site. 18 19 IV.G.2. Retirement and Financial Assurance: Conclusions of Law 20 21

Based on the foregoing findings and the evidence in the record, and subject to compliance with 22 the site certificate conditions, the Council finds that the facility complies with the Council’s 23 Retirement and Financial assurance standard. 24 25 IV.H. Fish and Wildlife Habitat [OAR 345-022-0060] 26 27 To issue a site certificate, the Council must find that the design, construction and operation of 28 the facility, taking into account mitigation, are consistent with the fish and wildlife habitat 29 mitigation goals and standards of OAR 635-415-0025 in effect as of September 1, 2000. 30

31 IV.H.1. Fish and Wildlife Habitat: Findings of Fact 32

33 The Fish and Wildlife Habitat Standard requires the Council to find that throughout the 34 construction and operation of the facility, the certificate holder’s activities will be consistent 35 with the Oregon Department of Fish and Wildlife’s (ODFW) habitat mitigation goals and 36 standards.152 37 38 In OAR 635-415-0025, ODFW defines six habitat categories in order of value to wildlife. The rule 39 establishes mitigation goals and corresponding implementation standards for each habitat 40

152 OAR 635-415-0025.


category. Further, ODFW rules define habitat under two broad classifications: “essential” and 1 “important.” Essential, under OAR 635-415-005, is any habitat condition or set of conditions 2 which, if diminished in quality or quantity, would result in depletion of a fish or wildlife species. 3 “Important” is any habitat recognized as a contributor to sustaining fish and wildlife 4 populations on a physiographic province basis over time. 5 6 Habitat Category 1 is “irreplaceable, essential habitat for a fish and wildlife species, population 7 or a unique assemblage of species and is limited on either a physiographic province or a site-8 specific basis, depending on the individual species, population or unique assemblage.” The 9 mitigation goal for Category 1 habitat is no loss of either habitat quantity or quality. This goal 10 requires avoidance of impacts. 11 12 Habitat Category 2 is “essential habitat for a fish or wildlife species, population or unique 13 assemblage of species and is limited either on physiographic province or site-specific basis 14 depending on the individual species, population or unique assemblage.” The mitigation goal if 15 impacts are unavoidable is no net loss153 of either habitat quantity or quality and to provide a 16 net benefit of habitat quantity or quality. To achieve this goal, impacts must be avoided or 17 those impacts which cannot be avoided must be mitigated through “reliable in-kind, in-18 proximity” habitat mitigation to achieve no net loss of either pre-development habitat quantity 19 or quality.154 20 21 Habitat Category 3 is “essential habitat for fish and wildlife, or important habit for fish and 22 wildlife that is limited either on a physiographic province or site-specific basis, depending on 23 the individual species of population.” The mitigation goal for Category 3 is no net loss of either 24 habitat quantity or quality. This goal is achieved by avoidance of impacts or by mitigation of 25 unavoidable impact through “reliable in-kind, in-proximity” habitat mitigation, achieve no net 26 loss in either pre-development habitat quantity or quality. 27 28 Habitat Category 4 is “important habitat for fish and wildlife species.” The mitigation goal for 29 Category 4 is no net loss in either existing habitat quantity or quality. This goal is achieved by 30

153 OAR 635-415-0005 defines “net loss” as a loss of habitat quantity and/or habitat quality resulting from

a development action despite mitigation measures having been taken. “Net Benefit” means an increase in overall in-proximity habitat quality or quantity after a development action and any subsequent mitigation measures have been completed and monitored.

154 OAR 635-415-0005 defines “in-kind habitat mitigation” as habitat mitigation measures that “recreate similar habitat structure and function to that existing prior to the development action.” OAR 635-415-0005 defines “in-proximity habitat mitigation” as follows: “habitat mitigation measures undertaken within or in proximity to areas affected by a development action. For the purposes of this policy, ‘in proximity to’ means within the same home range, or watershed (depending on the species or population being considered) whichever will have the highest likelihood of benefiting fish and wildlife populations directly affected by the development.” OAR 635-415-0005 defines “reliable method” as “a mitigation method that has been tested in areas with site factors similar to those affected by a development action and the area in which the mitigation action is being proposed and that has been found (e.g., through field trials, demonstration projects or scientific studies) to produce the habitat effects required to meet the mitigation goal for that action.”


“reliable in-kind or out-of-kind, in-proximity or off-proximity” habitat mitigation to achieve no 1 net loss in either pre-development habitat quantity or quality.” 2 3 Habitat Category 5 is “habitat for fish and wildlife having high potential to become either 4 essential or important habitat.” The mitigation goal, if impacts are unavoidable, is to provide a 5 net benefit in habitat quantity or quality. This goal is achieved through actions that contribute 6 to essential or important habitat. 7 8 Habitat Category 6 is “habitat that has low potential to become essential or important habitat 9 for fish and wildlife.” The mitigation goal is to minimize impacts. The goal is achieved by actions 10 that minimize direct habitat loss and avoid impacts to off-site habitat. 11 12 The project order identifies the analysis area for fish and wildlife habitat disturbance as the 13 area within the site boundary and the area 0.5 mile from the site boundary. The applicant 14 addressed the Council’s Fish and Wildlife Standard in Exhibit P of the application. 15 16

A. Habitat Categories in the Analysis Area 17 18 To identify the habitat characteristics of the proposed site, the applicant mapped the area using 19 a two step-process. First, the applicant conducted a desktop analysis utilizing information from 20 existing databases. Second, the applicant verified and supplemented the desktop analysis with 21 field observations. According to the ASC, the Oregon National Gap Analysis Program (OAR GAP) 22 contains the most current and accurate spatial land cover dataset available for the Site. 23 Therefore, the applicant utilized the OAR GAP as the foundation for vegetation and habitat 24 mapping, along with aerial photography.155 For the second step, two field biologists walked the 25 area designated for the Station, the natural gas pipeline right-of-way, the step-up substation 26 site and its associated underground transmission line ROW.156 Staff from ODFW reviewed the 27 preliminary application and recommended the applicant re-evaluate the functional condition of 28 areas where long-billed curlews and Savanna Sparrows were present as that habitat would 29 likely be functioning at a higher level than initially categorized. In response to the comments 30 and the department’s Request for Additional Information, the applicant re-assessed and re-31 classified Weedy Grasslands #1, #2, #4, and #5 as Category 5 rather than Category 6. ODFW did 32 not submit additional comment on the ASC in response to the applicant’s reassessment. 33 34 Category 6 35 36 Weedy Grassland #3 37

155 ASC, Exhibit P, P-4 4. 156 The E&E biologists drove along the transmission line to verify the OR GAP data. They did not walk the

transmission line ROW because the existing transmission line is being reconductored and new ground disturbance is not anticipated.


The applicant categorized “weedy grassland #3” as Category 6 because of the high level of 1 ground disturbance and anthropogenic disturbances (homes, interstate highway traffic), which 2 indicate that it is has the low potential to become essential or important habitat for fish and 3 wildlife. As explained in the ASC, the habitat appeared to have endured heavy grazing and be 4 subject to regular disturbance from farm equipment and vehicles. The dominate vegetation on 5 this land includes cheatgrass, foxtail barley and bare ground.157 During field surveys, long-billed 6 curlews were observed foraging in the adjacent agricultural field; however long-billed curlews 7 were not observed nesting in this habitat. The applicant anticipates no permanent impacts and 8 0.68 acres of temporary impact to this habitat. 9 10 Weedy Grassland #6 11 The applicant categorized “weedy grassland #6” as Category 6 because of the high densities of 12 non-native plants and noxious weeds, its small area, and the close proximity of high levels of 13 disturbance by anthropogenic activities. This habitat shows evidence of relatively recent 14 agricultural activities and consists of vegetation dominated by mustards, fiddlenecks, 15 cheatgrass and prickly Russian thistle. 5-10 percent of the cover is bare ground and small 16 mammal burrows were present.158 The applicant anticipates approximately 3.00 acres of 17 permanent impact from the facility and 0.71 acres of temporary impact. 18 19 Agriculture 20 The applicant categorized “agriculture” as Category 6 because the land is actively managed for 21 human use. This habitat consists entirely of active circular crop fields. The applicant does not 22 anticipate any permanent impacts from the facility and 6.77 acres of temporary impacts on this 23 habitat. 24 25 Developed 26 As explained in the ASC, this category was used to denote any area that had been completely 27 altered from its natural state for anthropogenic uses, excluding Agriculture. The applicant 28 included, but did not limit this designation to, roads, residential and commercial buildings, 29 lawns, and cattle yards. These lands have been classified as Category 6 because they are 30 primarily for human use.159 The applicant anticipates 1.16 acres of permanent impact and 5.38 31 acres of temporary impact. 32 33 Open Water (canals) 34 Several irrigation canals exist within the analysis area and are managed by the Westland 35 Irrigation District with water supplied by the U.S. Bureau of Reclamation through the Umatilla 36 Basin Project. However, as explained in the ASC, the canals lack the riparian vegetation and 37 physical structure necessary to support important fish populations (and are not jurisdictional 38 waters of the state, see Removal-fill discussion below). Therefore, the application classified the 39

157 ASC, Exhibit P, P-6 158 ASC, exhibit P, p.7 159 ASC, Exhibit P, P-9.


canals as habitat Category 6. The applicant anticipates 0.29 acres of permanent impact to the 1 canals and 0.12 acres of temporary impact from the facility. 2 3 Category 5 4 5 Weedy Grassland #1 6 The applicant categorized “weedy grassland #1” as Category 5 because it is habitat for fish and 7 wildlife having high potential to become either essential or important habitat. As explained in 8 the application this habitat was heavily disturbed and dominated by non-native plant species, 9 likely because it is located between agricultural crop circles.160 Cheatgrass makes up 10 approximately 70 to 80 percent of this habitat, with mustards, redstem stork’s bill, fiddlenecks, 11 prickly Russian thistle, rubber rabbitbrush, yellow rabbitbrush and sagebrush also documented. 12 During field observations, two wildlife species were observed using the habitat, Chipping 13 Sparrows and Savannah Sparrows. Additionally, the applicant noted in the ASC that field 14 observations suggest that Long-billed curlews may also potentially nest in these grasslands; 15 however, none were witnessed during observation. The applicant does not anticipate any 16 permanent disturbance to Weedy Grassland #1; and anticipates approximately 9.71 acres to be 17 temporarily impacted. 18 19 Weedy Grassland #2 20 The applicant categorized “weedy grassland #2” as Category 5 because it is habitat for fish and 21 wildlife having high potential to become either essential or important habitat.” This habitat is 22 limited to a small area near milepost 2 of the natural gas pipeline route and was similar to 23 weedy grassland #1 in terms of vegetation in the area. As explained in the ASC, cheatgrass was 24 again dominate, along with bunchgrass species, yellow rabbitbrush and cereal rye. Also present 25 in small numbers were sagebrush, mustards and fiddlenecks. No wildlife species were observed 26 in this habitat during survey. The applicant does not anticipate any permanent disturbance to 27 Weedy Grassland #2; and anticipates approximately .59 acres of temporary impact. 28 29 Weedy Grassland #4 30 The applicant categorized “weedy grassland #4” as Category 5 due to the presence of long-31 billed curlews, which indicates this area has the potential to become either essential or 32 important habitat. The vegetation reported in this area was cheatgrass, cereal rye, mustards, 33 fiddlenecks and Scotch thistle. While the vegetation mix is similar to “weedy grasslands #1” and 34 “weedy grasslands #2” this area has a larger presence of the cereal rye and Scotch thistle, 35 which are classified as noxious weeds in Umatilla County. As explained in the ASC, this is the 36 largest contiguous patch of grassland in the Station site and the natural gas pipeline ROW.161 As 37 stated above, long-billed curlews were observed during the field surveys, in addition to the 38 Red-tailed Hawk, which was actively nesting in the black locust trees that line the western edge 39

160 ASC, Exhibit P, P-5 161 ASC, Exhibit P, pg. 7.


of the habitat. The applicant anticipates approximately 18.52 acres of permanent impact and 1 10.10 acres of temporary impact. 2 3 Weedy Grassland #5 4 The applicant categorized “weedy grassland #5” as Category 5 due to its high density of non-5 native plants and noxious weeds, its small area and the close proximity to high levels of 6 disturbance by anthropogenic activities. As explained in the ASC, bare soils were more 7 prevalent here than in weedy grasslands #1-4 and small mammal burrows were present. 8 Vegetation present at weedy grassland #5 included Sandberg’s bluegrass (made up more than 9 50% of this habitat), diffuse knapweed, rubber rabbitbrush, prickly Russian thistle, and 10 wheatgrass. The applicant anticipates 0.51 acres of permanent impact and 0.57 acres of 11 temporary impact. 12 13 Category 3 14 Shrub Steppe 15 As explained in Exhibit P, the applicant identified eight relatively small patches of shrub steppe 16 habitat in the analysis area surrounding the station site and natural gas pipeline ROW. The 17 patches of habitat identified are small and disconnected, and contain non-native species; 18 however, the applicant categorized shrub steppe as Category 3 because of the importance of 19 shrub steppe habitat for wildlife.162 As explained in the ASC, this habitat is considered limited in 20 the larger context of the Columbia Plateau Ecoregion. In the analysis area, the habitat consists 21 primarily of antelope bitterbrush, rubber rabbitbrush, yellow rabbitbrush, cheatgrass, 22 mustards, redstern stork’s bill, prickly Russian thistle, and fiddlenecks.163 Sagebrush Sparrow is 23 an ODFW sensitive species that prefers shrub steppe habitats and may find the shrub steppe 24 patches near the station site to be suitable habitat, regardless of the relatively limited habitat 25 area and lack of connectivity.164 The applicant does not anticipate any permanent impact to 26 Shrub Steppe; however, and anticipates 2.03 acres of temporary impacts to the habitat. 27 28 Category 2 29 Riparian 30 The applicant identified the woodland and thicket habitat running along the Umatilla River as 31 “riparian” habitat which qualifies as Category 2 habitat because they are both important to fish 32 and wildlife species/populations and limited in the physiographic province. The applicant does 33 not anticipate any impacts, permanent or temporary, to the habitat. 34 35 Open Water (Umatilla River).As explained in the ASC, the Umatilla River supports important fish 36 populations, including the potential for state sensitive species; therefore, the applicant 37

162 ASC, Exhibit P, P-8. 163 Field surveys were limited to the station’s site and the natural gas pipeline ROW due to property access

restrictions. 164 ASC, Exhibit P, P-8.


designated the river as Category 2. The applicant does not anticipate any impacts, permanent 1 or temporary, to the habitat. 2 3 Because habitats can and will change over time, to ensure the habitat categories identified in 4 the ASC remain accurate at the time of construction, the Council adopts the following 5 conditions: 6 7

Condition H.1: Before beginning construction, the certificate holder shall provide the 8 department and Oregon Department of Fish and Wildlife (ODFW) a detailed map of the 9 facility site, showing all project components, and a table showing the acres of temporary 10 habitat impacted by habitat category and subtype and the acres of permanent habitat 11 impacted by habitat category and subtype. The maps of the facility site shall indicate the 12 habitat categories of all areas that will be affected during construction. In classifying the 13 affected habitat into habitat categories, the certificate holder shall consult with ODFW. The 14 certificate holder shall not begin ground disturbance in an affected area until the habitat 15 assessment has been approved by the department, in consultation with ODFW. The 16 certificate holder shall not construct any facility components within areas of Category 1 17 habitat and shall avoid temporary disturbance of Category 1 habitat. 18 19 Condition H.2: Prior to commencement of construction, following completion of condition 20 H.1, the certificate holder shall consult with the Oregon Department of Fish and Wildlife 21 (ODFW) to determine the final acreage of habitat mitigation required. Mitigation shall be 22 provided in accordance with the final acreage determinations provided in response to 23 Condition H.1 and consistent with a Habitat Mitigation Plan, if determined necessary, as 24 approved by the department and ODFW 25 26

(a) A final Habitat Mitigation Plan, if determined necessary, and ODFW’s concurrence of 27 that plan shall be submitted to the department no less than 30 days prior to the 28 beginning of construction. 29 (b) The final Habitat Mitigation Plan, if necessary, may be amended from time to time by 30 agreement of the certificate holder and the Oregon Energy Facility Siting Council. Such 31 amendments may be made without amendment of the site certificate. The Council 32 authorizes the department to agree to amendments to this plan. The department shall 33 notify the Council of the Final Habitat Mitigation Plan and all amendments to the plan. 34 The Council retains the authority to approve, reject or modify any amendments of this 35 plan agreed to by the department. 36

37 B. Potential Adverse Impacts and Mitigation 38

39 Table H-1 below shows the potential permanent and temporary disturbances to each habitat 40 category in acres. 41 42


1 Temporary Disturbances (in acres) to Each Habitat Type

Habitat Type Mitigation Category Disturbance Acres

Weedy Grassland #1 5 9.71


Weedy Grassland #3

6 .68

Weedy Grassland #4 5 10.10 Weedy Grassland #5 5 0.57


Agriculture 6 6.77

Shrub Steppe 3 2.03

Riparian 2 0.00

Open Water 6 0.12

Developed 6 5.38

Total = 36.67 2

As noted above and explained in the ASC, approximately 81 percent of the areas of permanent 3 disturbance would consist of weedy grasslands that are classified as “habitat category 5.” The 4 remainder of the areas to be permanently impacted by the project would be highly disturbed 5 weedy grasslands, developed areas, and open water habitats that are classified as “habitat 6 category 6.” Permanent ground disturbance related to construction would occur at the energy 7

Table H-1 Potential Permanent and Temporary Disturbances (in acres) to Each Habitat Type

Permanent Disturbances (in acres) to Each Habitat Type

Habitat Type Mitigation Category Disturbance Acres







Agriculture 6 0.00

Shrub Steppe 3 0.00

Riparian 2 0.00

Open Water 6 0.29

Developed 6 1.16

Total = 23.48


facility site, the step-up substation and the riser structures associated with the step-up 1 substation. 2 3 In addition to permanent impacts, the applicant anticipates that approximately 57 percent of 4 areas temporarily disturbed to be weedy grasslands classified as “habitat category 5,” and 5 approximately 37 percent to be highly disturbed weedy grasslands, active agriculture, 6 developed areas, and open water areas classified as “habitat category 6.” Additionally, the 7 remaining six percent to experience temporary disturbance would be 2.03 acres of shrub 8 steppe habitat that is classified as “habitat category 3” within the natural gas pipeline ROW.165 9 Total construction duration for the station is expected to be 22 months, from mobilization to 10 commencement of commercial operation. At peak construction, the applicant estimates that 11 200 to 225 construction workers would be employed at the project site. During construction, 12 the activities associated with temporary disturbance would include flattening of vegetation by 13 construction vehicles and removal of topsoil and vegetation through grading, excavation or 14 drilling.166 However, the applicant proposes to restore all non-cultivated temporary disturbance 15 areas to original grade and soil condition, and to and re-contour and de-compact it, if 16 necessary, after final construction.167 Following restoration of the grade, the applicant proposes 17 to then evaluate whether re-seeding or other vegetation techniques are required to return the 18 area to preconstruction vegetation condition. If necessary, the applicant proposes to initiate re-19 seeding immediately after construction is completed on that part of the facility.168 The 20 applicant’s goal in restoring the areas temporarily disturbed is to return all areas to a vegetative 21 cover and species assemblage consistent with the pre-construction conditions, or better.169 22 Based upon the potential temporary impacts and to ensure areas temporarily disturbed are 23 returned to preconstruction conditions or better, the Council adopts the following conditions: 24 25

Condition H.3: The certificate holder shall restore all areas temporarily impacted due to 26 construction to pre-construction condition or better after construction has been completed. 27

28 Condition H.4: Before beginning construction, the certificate holder shall prepare a final 29 Project Restoration Monitoring Plan and Project Biological Monitoring Plan in consultation 30 with the department and Oregon Department of Fish and Wildlife (ODFW). 31 32

(a) The final plans and ODFW’s concurrence must be submitted to the department no 33 less than 30 days prior to the beginning of construction. The certificate holder shall 34 implement the requirements of the approved plan during all phases of construction and 35 operation of the facility, as applicable. 36

165 ASC, Exhibit P, P-19. 166 ASC, Exhibit P, Appendix P-3, pg. 2 167 ASC, exhibit P, Appendix P-2, Pg-8. 168 ASC, Exhibit P, Appendix P-2, Pg-8. 169 ASC, Exhibit P, Appendix P-3, pg. 6.


(b) The plans may be amended from time to time by agreement of the certificate holder 1 and the Oregon Energy Facility Siting Council. Such amendments may be made without 2 amendment to the site certificate. The Council authorizes the department to agree to 3 amendments of this plan; however, the Council retains the authority to approve, reject 4 or modify any amendment of this plan agreed to by the department. 5

6 Direct impacts on wildlife from sensory disturbances are possible during construction and 7 operation as noise, vibrations and human presence could cause displacement, or avoidance of 8 areas and/or nest abandonment by breeding birds.170 Additionally, sensory disturbances can 9 cause stress, displacement or avoidance behavior resulting in disruptions in essential activities 10 such as foraging, reproduction, and parental care. Nonetheless, the applicant anticipates 11 project-related sensory disturbance impacts to be intermittent and short term, occurring only 12 during construction work hours and ceasing after construction activities have moved from the 13 vicinity because during operation, project personnel, equipment and vehicles would 14 substantially reduce as the applicant only anticipates 6 to 8 full time employees at the site.171 15 Further, the analysis area currently has an elevated level of human activity and noise as it 16 includes the City of Umatilla as well as several interstate routes and highways, and 17 industrial/energy developments. 18 19 No excavation or grading would occur during the reconductoring of the transmission line. 20 Installation of the additional new poles (maximum of 6), would include ground disturbing 21 activities; however, those ground disturbing activities would occur within the boundary of the 22 energy facility site or the existing UEC ROW and those temporary impacts are accounted for in 23 the impact assessment above (0.46 acres of impact).172 As explained in the ASC, major 24 equipment required for reconductoring may include reel stands, tensioner, puller reel winder, 25 pilot line winder, splicing cart and pulling vehicle. The applicant estimates that 12 stringing 26 locations would be required for the reconductoring effort.173 However, as explained by the 27 applicant, each stringing location would be contained with the existing transmission ROW and 28 would measure for a total of approximately 1.38 acres of temporary disturbance. Additionally, 29 while transmission lines have the potential for collision and electrocution, risks to birds and 30 bats are not likely to be increased by the reconductoring in consideration of the conditions 31 below. 32 33 To ensure the facility is constructed in accordance with the Council’s Fish and Wildlife standard 34 and impacts avoided as able, the Council adopts the following conditions: 35 36

Condition H.5: Prior to commencing construction, all project personnel shall attend an 37 environmental training session conducted by the certificate holder. The training shall 38

170 ASC, Exhibit P, P-17. 171 ASC, Exhibit P, P-18, 20. 172 ASC, Exhibit B, B-15. 173 ASC, Exhibit P, P-19.


include, but not be limited to, the following topics: identification of approved project 1 boundaries and access roads; identification of sensitive wetland and waterbody resources; 2 identification of special status-plant and wildlife species; techniques regarding avoidance 3 and minimization measures the certificate holder will implement; the role of the onsite 4 biologist; the notification process to be followed if new sensitive resources are identified. 5 6 Condition H.6: The certificate holder shall design, construct, maintain and operate the 7 reconductored transmission line following the current Avian Power Line Interaction 8 Committee guidelines to minimize risk of avian mortality. 9 10 Condition H.7: The certificate holder shall restrict vehicular travel along the transmission 11 line and pipeline to the right of way (ROW) and other established areas within the 12 construction, access or maintenance easements. Additionally, the certificate holder shall 13 impose speed limits during construction for access roads to reduce dust emissions, maintain 14 safety and protect wildlife. 15

16 Based on the evidence in the record, the Council finds that the design, construction and 17 operation of the facility, taking into account mitigation, are consistent with the fish and wildlife 18 habitat mitigation goals and standards. 19

20 C. State Sensitive Species 21

22 To identify state sensitive species that might be present in the analysis area, the applicant first 23 conducted a literature review and queries of available databases. The applicant then verified 24 the species identified from the desktop during baseline field surveys and through consultation 25 with ODFW and Oregon Department of Agriculture. 174 26 27 The applicant conducted surveys for special status plant species on May 9 and August 1, 2013. 28 Prior to conducting the surveys, the applicant prepared a table of species listed by the USFWS 29 and Oregon Department of Agriculture that potentially occur in the Project Area. 30 31 Table P-1 of the ASC, lists the sensitive and candidate species that may be present in the 32 analysis area. The following discusses each sensitive and candidate species identified in Table P-33 1 that was observed or is “possibly or likely” to occur within the analysis area. 34 35 Inland Columbia Redband Trout 36 As explained in ASC, the Umatilla River provides habitat for the Inland Columbia Redband Trout. 37 The transmission line for the facility would span the Umatilla River; however, as explained 38 above, the transmission line infrastructure already exists and already spans the Umatilla River. 39 The applicant proposes to upgrade the line from a 115-kV to a 230-kV line but would rely on the 40

174 ASC, Exhibit P, p. 10.


existing infrastructure for the majority of the line. No new planned transmission line 1 construction would result in ground disturbing activities that could impact the Umatilla River. In 2 addition, the applicant notes that the natural gas lateral pipeline would also traverse irrigation 3 canals that connect to the Umatilla River. However, these canals do not meet the habitat 4 requirements of redband trout, which require cool temperature waters. Based on this analysis, 5 there are no project-related issues of concern regarding this species.175 6 7 Western Toad 8 As explained in the ASC, the analysis area comprises fair to good habitat for this species 9 because western toads live in a variety of habitats, which include arid shrubby areas, suburbs, 10 and irrigated agricultural areas. The western toads breed in aquatic habitats, which could 11 include stock ponds and reservoirs. However, based upon the applicant’s review, there are no 12 ORBIC records of western toads. Further, as stated in Exhibit P, the project would not 13 permanently impact water bodies or wetlands.176 Temporary impacts are possible, during 14 construction, due to indirect impacts associated with the increase in noise and human 15 presence.177 16 17 Swainson’s Hawk 18 As provided in the ASC, this species is likely to occur in the analysis area and the Station site as 19 there are numerous records of Swainson’s Hawk in the Hermiston area and they migrate 20 through and breed in Eastern Oregon.178 The species prefer open habitats and are most 21 common in bunchgrass prairie and irrigated farmland.179 The applicant does not anticipate that 22 the project operation will impact or present issues of concern for the Swainson’s Hawks. 23 However, construction activities could present issues of concern if active nests are located in 24 close proximity to the construction source; however, these impacts could be mitigated by 25 avoiding disturbance of active nests.180 Mitigation is discussed below. 26 27 Long-Billed Curlew 28 As explained in the ASC, long-billed curlew have been documented in the Hermiston area 29 during the migration and breeding season. The long billed curlew arrives in Oregon in mid-30 March and remains as late as October or November.181 The species breeds primarily in 31 grasslands, particularly in those dominated by cheatgrass. As with Swainson Hawks, the 32 applicant does not anticipate impacts to the species, unless active nests are present in or very 33 near the construction area. As discussed below, the applicant proposes to mitigate the 34

175 ASC, Exhibit P, P-10. 176 ASC, Exhibit P, P-10. 177 ASC, Exhibit P, P-10 178 ASC, Exhibit P, P-13. 179 ASC, Exhibit P, P-13. 180 ASC, Exhibit P, P-13. 181 ASC, Exhibit P, P-13.


potential impacts to the long-billed curlew due to project construction by avoiding disturbance 1 of any active nests.182 2 3 Peregrine Falcon 4 Peregrine Falcons nest on cliffs and occur as resident and migratory populations in Oregon. 5 However, as explained by the applicant, although there are numerous records of Peregrine 6 Falcons in the Boardman area (23 miles east of the project site), the construction and operation 7 of the project is not anticipated to impact the species because there is no suitable nesting 8 substrates (i.e. cliffs) in the analysis area.183 9 10 Loggerhead Shrike 11 As explained in the ASC, Loggerhead Shrike’s breed in eastern Oregon and are rare but regular 12 in the winter and have been observed in the Hermiston area.184 The analysis area is composed 13 of fair to good quality habitat for the species as they prefer open habitats with scattered trees 14 or shrubs, which may include pastures, mowed roadsides, golf courses, agricultural lands, 15 riparian areas and open woodlands.185 The applicant does not anticipate any impacts on this 16 species from the construction and operation of this project, unless active nests are documented 17 in close proximity to construction activities. Mitigation is discussed below. 18 19 Sagebrush Sparrow: 20 As explained in the ASC, Sagebrush sparrow are migrants and breeders in Oregon and 21 associated with sagebrush and other high desert shrub habitats. Small, isolated patches of 22 Sagebrush Sparrow occur throughout the analysis area; however, sagebrush habitat is not 23 existent in the areas of construction for the project. There are sagebrush plants that do occur in 24 a few very small isolated patches amidst agriculture and weedy grassland vegetation, but as 25 explained in the ASC, these habitat patches would not be able to support breeding Sagebrush 26 Sparrows.186 Therefore, the applicant does not anticipate any project-related impacts to this 27 species.187 28 29 Grasshopper Sparrow 30 Fair to good habitat is available in small, scattered patches in the analysis area, as Grasshopper 31 Sparrows breed in grasslands with an absence of woody shrubs. Based on the applicant’s search 32 on ORBIC, there is potential habitat for the species near the southern terminus of the natural 33 gas pipeline and along the transmission line near the mouth of the Umatilla River. However, 34 based on the applicant’s field verification of the ORBIC-identified habitat near the southern 35 terminus of the natural gas pipeline, the area is highly unlikely to support Grasshopper 36

182 ASC, Exhibit P, P-13. 183 ASC, Exhibit P, P-13. 184 ASC, Exhibit P, P-14. 185 Id. 186 ASC, Exhibit P, P-14. 187 ASC, Exhibit P, P-14.


Sparrows because the area is dominated by active agriculture and grassy areas of dense, 1 invasive weeds.188 According to the ASC, several Grasshopper Sparrows have been documented 2 in recent years in the Boardman area, along with two observations at the Umatilla Army Depot. 3 The applicant proposes to clear some grassland habitats; however, the applicant states that 4 the grassland habitat to be cleared is already disturbed and dominated by invasive weeds, 5 which would be unlikely to support breeding Grasshopper Sparrows.189 Mitigation is discussed 6 below. 7 8 California Myotis 9 California Myotis forage along clumps of trees, on woodland edges and over open water. They 10 roost in both natural and man-made structures, including buildings, mines, rock crevices, cliff 11 faces and hollow trees. While the analysis area includes fair to good habitat for this species, 12 there are no documented records of the species in the analysis area, according to the ASC.190 13 While the species could be disturbed by construction-related activities if active roosts occur in 14 close proximity, the applicant does not anticipate any impacts because there is substantial 15 anthropogenic disturbance already in the analysis area and construction is not planned to occur 16 in close proximity to suitable man-made structures for roosting.191 17 18 White-Tailed JackRabbit 19 There are no documented records of this species in the analysis area. As explained by the 20 applicant, the White-Tailed jackrabbit prefers open fields and ryegrass habitat and cleared 21 vegetation may prove to be suitable for the species. However, the applicant does not anticipate 22 any impacts to this species because anthropogenic disturbance is already common in the 23 area.192 24 25 Columbia Cress 26 Columbia Cress grows near many types of water bodies and in a variety of soils. However, as 27 explained in the ASC, the most likely locations for its occurrence in the analysis area is along the 28 Columbia and Umatilla Rivers and their tributaries as well as irrigation ditches and roadside 29 ditches. However, there are no known occurrences of this species in the analysis area and no 30 individuals were observed; therefore, the applicant does not anticipate any issues of concern 31 for this species.193 32 33 34 35

188 ASC, Exhibit P, P-14 189 ASC, Exhibit P, P-15. 190 ASC, Exhibit P, P-15. 191 ASC, Exhibit P, P-15. 192 ASC, Exhibit P, P-15. 193 ASC, exhibit P, P-16.


D. Mitigation 1 2

Because some sensitive and candidate species were observed and/or have the potential to 3 occur within the analysis area, the Council adopts the following conditions, as recommended by 4 the applicant, to mitigate any potential temporary impacts associated with construction or 5 operation of the facility, 6 7

Condition H.8: During all years in which construction occurs, if construction related 8 activities occur during the raptor breeding season (February 1 through August 31), the 9 certificate holder must conduct pre-construction surveys within 0.5 miles of all proposed 10 project features for Ferruginous Hawk nests, and within 0.25 miles for all other raptor 11 species nests, including burrowing owl burrows. If active nests are located, the certificate 12 holder shall notify the department and the Oregon Department of Fish and Wildlife 13 (ODFW), and construction-related activities must be restricted within 0.5 miles of 14 Ferruginous Hawk nests and 0.25 miles of all other raptor nests until the nests have failed or 15 chicks have fledged. A biologist shall monitor the status of the active nests daily during 16 nearby active construction and document potential adverse interactions with the project. 17 18 Condition H.9: During all years in which construction occurs, if construction-related 19 activities occur during the migratory bird breeding season (March 15 through April 15), pre-20 construction surveys must be conducted within 20 feet of all proposed project features for 21 nests of all native, non-raptor species. Pre-construction nest surveys for non-raptors shall 22 be valid for only two weeks. If active nests are located, the certificate holder must notify the 23 department and consult with Oregon Department of Fish and Wildlife (ODFW) to determine 24 appropriate avoidance and/or mitigation measures necessary. A biologist must monitor the 25 status of active nests daily during nearby active construction and document potential 26 adverse interactions with the project. 27 28 Condition H.10: If a California myotis roost is observed during other biological surveys, the 29 certificate holder must notify the department and consult with Oregon Department of Fish 30 and Wildlife (ODFW) to determine any appropriate avoidance or mitigation measures 31 necessary. 32 33 Condition H.11: If construction is to occur during important times (breeding season for 34 Ferrunginous Hawks and other raptors or migration for all native non-raptors), or at close 35 distances to environmentally sensitive areas (nests of the above), prior to any construction 36 activities, the certificate holder must consult with Oregon Department of Fish and Wildlife 37 (ODFW) to determine appropriate measures to take and guidance on seasonal and/or 38 spatial restrictions to avoid or minimize impact. 39 40


Condition H.12: The certificate holder shall provide the department and the Oregon 1 Department of Fish and Wildlife (ODFW) with a written summary of all results of biological 2 preconstruction surveys, including nest surveys, within 10 days of survey completion. 3

4 Condition H.13: The certificate holder shall clearly demarcate boundaries of 5 environmentally sensitive areas (nests referred to in Condition H.11) during construction to 6 increase visibility to construction crews. 7 8 IV.H.2. Fish and Wildlife Habitat: Conclusions of Law 9

10 Based on the foregoing findings and the evidence in the record, and subject to compliance with 11 the site certificate conditions, the Council finds that the facility complies with the Council’s 12 Siting Standards for Fish and Wildlife Habitat. 13 14 IV.I. Threatened and Endangered Species [OAR 345-022-0070] 15 16 To issue a site certificate, the Council, after consultation with appropriate state agencies, must 17 find that: 18 19

(1) For plant species that the Oregon Department of Agriculture has listed as threatened 20 or endangered under ORS 564.105(2), the design, construction and operation of the 21 proposed facility, taking into account mitigation: 22

23 (a) Are consistent with the protection and conservation program, if any, that the 24 Oregon Department of Agriculture has adopted under ORS 564.105(3); or 25 26 (b) If the Oregon Department of Agriculture has not adopted a protection and 27 conservation program, are not likely to cause a significant reduction in the likelihood 28 of survival or recovery of the species; and 29 30

(2) For wildlife species that the Oregon Fish and Wildlife Commission has listed as 31 threatened or endangered under ORS 496.172(2), the design, construction and operation 32 of the proposed facility, taking into account mitigation, are not likely to cause a 33 significant reduction in the likelihood of survival or recovery of the species. 34

35 IV.I.1. Threatened and Endangered Species: Findings of Fact 36

37 The Threatened and Endangered Species Standard requires the Council, in consultation with 38 appropriate state agencies, to find that the construction and operation of a facility is consistent 39 with applicable protection plans for threatened or endangered plant and animal species. The 40 Council must also determine that the facility’s construction and operation are not likely to 41 cause a significant reduction in a species’ survival or recovery. For the purposes of this 42


standard, threatened and endangered species are those identified as such by either the Oregon 1 Department of Agriculture194 or the Oregon Fish and Wildlife Commission.195 Although the 2 Council standard addresses only those species listed as threatened or endangered by the 3 responsible agencies in Oregon,196 and does not directly address federally-listed threatened or 4 endangered species, the certificate holder must still comply with all applicable federal laws, 5 including laws protecting these species. The applicant provided information about compliance 6 with the Council’s Threatened and Endangered Species Standard in Exhibit Q of the ASC. 7 8 The project order identifies the analysis area for threatened or endangered plant and wildlife 9 species as the area within the site boundary and five miles from the site boundary. To identify 10 species potentially occurring in the analysis area, the applicant conducted both desktop studies 11 and field surveys. As explained in the ASC, the species identified in desktop analyses were then 12 verified during baseline field surveys conducted on May 9 and August 1, 2013. The applicant’s 13 surveys included ground surveys for raptor nests, Washington Ground Squirrels, special status 14 plants and wildlife, wetlands and streams, and general wildlife occurrence and habitat. The 15 areas within the energy facility site and step-up substation site were surveyed on foot and the 16 biologists drove along the existing transmission line ROW to verify the Oregon National Gap 17 Analysis Program data. The applicant developed survey protocols in consultation with the 18 Oregon Department of Fish and Wildlife to record all potential Washington Ground Squirrel 19 burrows, as well as fresh scat, visual sightings of squirrels, and auditory calls.197 Survey 20 biologists then examined habitat within 1,000 feet of all areas within the energy facility site, 21

194 ORS 564.100 defines “endangered and “threatened” plant species as follows: “Endangered Species” means: (a) Any plant species determined by the department to be in danger of extinction throughout any

significant portion of its range (b) Any native plant species listed as an endangered species pursuant to the federal Endangered Species

Act of 1973, as amended “Threatened Species” means: (a) Any native species the director determines by a finding of fact is likely to become an endangered

species within the foreseeable future throughout any significant portion of its range. (b) Any native plant species listed as a threatened species pursuant to the federal Endangered Species

Act of 1973, as amended. 195ORS 469.004 defines “endangered” and “threatened” wildlife species as follows: “Endangered species” means: (a) Any native wildlife species determined by the commission to be in danger of extinction throughout

any significant portion of its range within this state. (b) Any native wildlife species listed as an endangered species pursuant to the federal Endangered

Species Act of 1973, as amended. “Threatened Species” means: (a) Any native wildlife species the commission determines is likely to become an endangered species

within the foreseeable future throughout any significant portion of its range within this state. (b) Any native wildlife species listed as threatened species pursuant to the federal Endangered Species

Act of 1973, as amended. 196These species are referred to as “state-listed” species

197 ASC, Exhibit Q, pg. Q-2


subject to potential ground disturbance where suitable habitat or historic records of burrows 1 exists.198 2 3 Table Q-1, in the ASC, identifies each of the threatened and endangered species potentially 4 present in the analysis area. As explained in the ASC, the applicant determined that there are 5 no plant species listed as threatened or endangered under ORS 564.105(2) presented within 6 the analysis area. Further, based upon the biological surveys conducted in the analysis area, 7 there are no listed wildlife species or their habitat present on the station site, along the 8 transmission line route and the step-up substation. Therefore, the applicant does not anticipate 9 any adverse impact to any listed species.199 However, each species potentially present in the 10 analysis area is discussed in more detail below.200 11 12 Steelhead 13 As explained in the ASC, summer run of steelhead of the Middle Columbia River Evolutionarily 14 Significant Unit is likely to occur within the analysis area as the Columbia River and Umatilla 15 River are habitat for steelhead. However, as discussed the ASC, the project is not anticipated to 16 result in adverse impacts on this species because construction and operation of the facility 17 would not impact the Umatilla River or the Columbia River through any in-stream 18 construction.201 19 20 Bull Trout 21 As explained in the ASC, bull trout can either be stream-resident and non-migratory, or 22 migratory in cases where juvenile fish spend one to four years in their natal tributaries before 23 migrating to a large river or lake, where they rear before returning to the tributary stream to 24 spawn. The sections of the Columbia River and Umatilla River within the analysis are provide 25 potential habitat for bull trout.202 However, as with Steelhead, the applicant does not anticipate 26 project related impacts to Bull Trout because the construction and operation of the facility 27 would not impact the Umatilla River or the Columbia River through any in-stream crossings.203 28 29 Margined Sculpin 30 According to the ASC, the section of the Umatilla River in the analysis area provides potential 31 habitat for margined sculpin. However, the applicant does not anticipate the facility 32

198 ASC, Exhibit Q, pg. Q-2. 199 ASC, Exhibit Q, Q-16. 200 As noted above, for the purposes of finding compliance with this standard, threatened and endangered

species are those identified as such by either the Oregon Department of Agriculture or the Oregon Fish and Wildlife Commission. The Council standard addresses only those species listed as threatened or endangered by the responsible agencies in Oregon, and does not directly address federally-listed threatened or endangered species, the certificate holder must still comply with all applicable federal laws, including laws protecting these species.

201 ASC, Exhibit Q, Q-5. 202 ASC, Exhibit Q, Q-5 203 ASC, Exhibit Q, Q-5.


construction or operation to impact this species, because the project would not impact the 1 Umatilla River through any in-stream construction.204 2 3 Pacific Lamprey 4 Adult Pacific Lamprey live in the ocean one to two years before returning to freshwater streams 5 to spawn. As discussed in the ASC, the Columbia River and Umatilla River provide habitat for 6 the Pacific Lamprey. However, the applicant does not anticipate the facility construction or 7 operation to impact this species because the project would not impact the Umatilla River or the 8 Columbia River through any in-stream construction. 9 10 Northern Sagebrush Lizard 11 Sagebrush Lizards are active throughout much of their range from March/April to 12 September/October and primarily occur in sagebrush and other shrubby habitat but may also 13 be found in juniper and open areas of Ponderosa pine and Douglas fir, according to the ASC. 14 The applicant states that some fair habitat is available for this species in the analysis area; 15 however, there are no ORBIC records documenting its presence and the applicant’s May and 16 August, 2013 field surveys did not detect any northern sagebrush lizards.205 17 18 Ferruginous Hawk 19 As explained in the ASC, Ferruginous Hawks breed in sagebrush plains and bunchgrass prairies 20 of eastern Oregon. There are records of observation in the Hermiston area during the breeding 21 season and their presence is possible in the analysis area; however, during the field surveys of 22 2013, the applicant team did not detect any Ferruginous Hawks or their nests.206 Even if they 23 could potentially occur, the applicant does not anticipate adversely impacting this species as 24 the applicant proposes to conduct preconstruction surveys and, if nests are discovered during 25 those surveys, to mitigate or avoid disturbance. Further, the applicant proposes to consult with 26 the Oregon Department of Fish and Wildlife to determine appropriate construction buffers, 27 should active nests be discovered during the pre-construction surveys.207 Condition H.8., above, 28 requires the applicant to conduct raptor nest surveys for each year of construction, and, if nests 29 are present, the certificate holder shall notify the department and the Oregon Department of 30 Fish and Wildlife and construction-related activities must be restricted within 0.5 miles of 31 Ferruginous Hawk nests until the nests have failed or chicks have fledged. 32 33 Western Burrowing Owl 34 As discussed in the ASC, in the Columbia River Basin, Western Burrowing Owls prefer bare 35 ground or low vegetative cover for easy detection of prey. Suitable habitat is prevalent in the 36 analysis area, and there are documented observations of Burrowing Owls in the area.208 37

204 ASC, Exhibit Q, Q-6. 205 ASC, Exhibit Q, Q-6. 206 ASC, Exhibit Q, Q-7. 207 ASC, Exhibit Q, Q-7. 208 ASC, Exhibit Q, Q-7.


According to the ASC, Burrowing Owls are migratory breeders in Oregon, typically arriving in 1 early March and leaving the basin before October. However, during applicant conducted field 2 surveys, which was during the 2013 breeding season, the applicant team did not detect any 3 Burrowing Owls or discover any burrows potentially being used by Burrowing Owls.209 The 4 applicant does not anticipate any adverse impacts on this species, unless active nests are 5 documented in close proximity to construction activities during pre-construction surveys. In 6 that case, the applicant proposes that those impacts could be mitigated by avoiding 7 disturbance of any active nests.210 Condition H.8, above, requires the applicant to conduct 8 raptor nest surveys, including surveys of Burrowing Owl burrows, for each year of construction, 9 and, if nests are present, the certificate holder must notify the department and the Oregon 10 Department of Fish and Wildlife and construction-related activities must be restricted 0.25 11 miles of Burrowing Owl burrows until the nests have failed or chicks have fledged. 12 13 Lewis’s Woodpecker 14 As explained in the ASC, Lewis’s Woodpeckers are associated with open woodlands near water 15 in Oregon. According to the applicant, the analysis area is at the edge of this species’ range, and 16 potential available habitat in the analysis area ranges from poor to good in quality based on the 17 mapping provided by the Oregon Natural Heritage Information Center.211 The nearest records 18 of Lewis’s Woodpeckers include Hat Rock State Park and Cold Springs National Wildlife Refuge. 19 However, during applicant’s 2013 field surveys, the applicant team did not detect any Lewis’s 20 Woodpeckers and the applicant does not anticipate any impact to this species because the 21 project would not require or involve any clearing of riparian woodlands in the vicinity of these 22 habitats.212 23 24 Willow Flycatcher 25 As explained in the ASC, the analysis area includes small patches of high quality habitat for 26 Willow Flycatchers, with the most likely locations for Willow Flycatchers in the riparian areas 27 along the Umatilla River. However, the applicant team did not detect any Willow Flycatchers 28 during its 2013 field surveys.213 Further, the applicant does not anticipate that the project will 29 impact the species because construction and operation of the facility does not require clearing 30 of any suitable riparian habitat suitable for this species.214 31 32 Yellow-breasted Chat 33 Yellow-breasted chat migrate and breed in Oregon, arriving in eastern Oregon in early May and 34 departing by September. According to the ASC, small, scattered patches of fair to good habitat 35

209 ASC, Exhibit Q, Q-7. 210 ASC, Exhibit Q, Q-7. 211 ASC, Exhibit Q, Q-8. 212 ASC, Exhibit Q, Q-8. 213 ASC, Exhibit Q, Q-8 214 ASC, Exhibit Q, Q-8.


occur in the analysis area but are not large enough to support a breeding population.215 1 According to the applicant, the nearest documented occurrence was recorded in May 2009, at 2 Cold Springs National Wildlife Refuge, which is more than 10 miles to the northeast of the 3 station site. Further, during the applicant’s 2013 field surveys, yellow-breasted chats were not 4 detected.216 The applicant does not anticipate any impact to this species as project construction 5 and operation would not require the clearing of any suitable riparian habitat along the Umatilla 6 River.217 7 8 Tricolored Blackbird 9 As explained in the ASC, small, scattered patches of fair to good tricolored blackbird habitat 10 occurs through the analysis area as local breeding colonies are known from marshes in the 11 vicinity of Stanfield, Oregon and records of occurrences approximately 3 miles to the east of the 12 project near Manns Pond.218 However, tricolored blackbirds were not detected during the 13 applicant’s 2013 field surveys and the applicant does not anticipate any project impacts to this 14 species because construction and operation of the project does not require the clearing of any 15 suitable marshy habitats, in the vicinity of these habitats, during construction or operation. 16 17 Small–footed Myotis 18 As stated in the ASC, fair quality habitat and minimal high quality habitat of Small-footed 19 Myotis are predicted throughout the analysis area; however, there are no documented records 20 of this bat species. The applicant explains that the species roosts in buildings, on cliffs, in caves, 21 under boulders and sometimes beneath tree bark. As discussed in the ASC, these bats could be 22 disturbed by construction related activities if active roosts occur in close proximity; however, 23 the applicant does not anticipate any project related impacts to this species because 24 construction is not planned in close proximity to suitable man-made or rocky structures that 25 could provide roost sites. Further, any cleared suitable habitat is anticipated to consist of 26 isolated patches too small to support Small-footed Myotis. 27 28 Long-eared Myotis 29 Long-eared Myotis are primarily associated with woodlands and forest edges and may also 30 occur in arid shrublands if suitable roosting sites are available. Loss of habitat may impact local 31 breeding populations, however, as explained in the ASC, the woodlands preferred by the Long-32 eared Myotis are not present in the analysis area and construction is not planned to occur in 33 close proximity to suitable man-made or rocky structures that could provide roost sites. 34 Therefore, the applicant does not anticipate any adverse impacts to this bat species from 35 project construction or operation.219 36 37

215 ASC, Exhibit Q, Q-8 216 ASC, Exhibit Q, Q-8. 217 ASC, Exhibit Q, Q-8. 218 ASC, Exhibit Q, Q-9. 219 ASC, Exhibit Q, Q-9.


Long-legged Myotis 1 Typically, the Long-legged Myotis are associated with coniferous forests; however, in drier 2 areas, like the analysis area, they occur in riparian woodlands. The northern edge of the 3 analysis area is composed of fair habitat of this bat species, limited to the riparian woodlands 4 near the Umatilla and Columbia Rivers. As stated by the applicant, there are no documented 5 records of the species in the analysis area. The applicant does not anticipate any adverse 6 impacts to this species as the construction of the facility will not clear any valuable habitat for 7 this species and is not planned in close proximity to suitable man-made or rocky structures that 8 could provide roost sites.220 9 10 Yuma Myotis 11 As stated in the ASC, there are no documented records of the Yuma Myotis in the analysis area 12 or in Umatilla County, and the analysis area lacks heavily wooded streamside areas where this 13 bat species predominantly feeds over water with forested borders.221 The applicant does not 14 anticipate project related impacts to this species as the facility does not require the clearing of 15 any valuable wooded habitat along streams, nor will it remove any existing buildings or bridges 16 that could be roost sites.222 17 18 Pallid Bat 19 Pallid Bats are associated with a variety of arid vegetation types and they roost in buildings, 20 mines, cliff faces and caves. The ASC states that fair habitat for this species exists, scattered 21 throughout the analysis area, including the Umatilla Army Depot; however, there are no 22 documented records of the species in the analysis area.223 The applicant does not anticipate 23 adverse impacts to this species because construction is not planned in close proximity to 24 suitable man-made or rocky structures and any cleared shrub habitat is expected to be too 25 small to support Pallid Bats. 26 27 Washington Ground Squirrels 28 As explained in the ASC, there are records of Washington Ground Squirrels within the analysis 29 area, specifically, south of the southern terminus of the project and east of the McNary 30 Substation. The applicant’s 2013 field surveys did not detect the presence of Washington 31 Ground Squirrels or any large patches of quality habitat within or directly adjacent to the step-32 up substation site and 50-foot right of way gas pipeline right of way. The applicant proposes to 33 implement measures to avoid and/or minimize impacts on Washington Ground Squirrels during 34 and after construction, including conducting pre-construction surveys and restricting 35 construction activities, if need be. Therefore, the applicant does not anticipate any impacts to 36 this species. 37 38

220 ASC, Exhibit Q, Q-10. 221 ASC, Exhibit Q, Q-10. 222 Id. 223 ASC, Exhibit Q, Q-11.


Robinson’s Onion 1 Robinson’s Onion is a small plant that grows in well-drained sandy and gravelly soils along 2 rivers. The perennial blooms from April through May. As explained in the ASC, the plant was 3 historically known from Morrow, Sherman and Umatilla counties. However, it is considered 4 possibly extirpated from Oregon and 2013 field surveys did not record the presence of the plant 5 nor any well-drained gravelly soils in the canals crossed by the natural gas pipeline.224 The 6 Oregon Department of Agriculture concurred with the applicant’s findings that the area does 7 not include suitable habitat for the species as well as the lack of the species in the area. 8 Regardless, the project will not impact the shoreline of the Umatilla River or Columbia River; 9 therefore, no impacts to this plant are expected.225 10 11 Laurence’s Milkvetch 12 Laurence’s Milkvetch is a federal species of concern and a State of Oregon listed threatened 13 species. As explained in the ASC, there are currently fewer than 2,000 plants in existence and 14 no known population sites are considered protected. However, the applicant’s 2013 field 15 surveys found the energy facility site to be relatively flat and absent of the dry slopes where 16 Laurence’s milkvetch is commonly found. Further, the surveys noted that the majority of the 17 surveyed area was agricultural and heavily degraded; therefore, the site does not provide 18 suitable habitat for these species and no plants were found during surveys. The Oregon 19 Department of Agriculture concurred with these findings. Consequently, the applicant does not 20 anticipate any adverse impacts to this species from construction and operation of the 21 project.226 22 23 While the applicant does not anticipate any adverse impacts to any of these listed species 24 because of the lack of the species at the site or the lack of impacts to the species’ habitat, the 25 analysis area does include fair to good habitat for the identified species and there is a possibility 26 of species occurrence. Therefore, the Council adopts the following conditions to ensure that at 27 the time of construction there are no adverse impacts to any of the species: 28 29

Condition I.1: The certificate holder shall establish streamside management zones within 50 30 feet of both sides of intermittent and perennial streams and along margins of bodies of 31 open water where removal of low-lying vegetation is minimized. 32

33 Condition I.2: Prior to beginning construction, the site certificate holder shall survey for 34 northern sagebrush lizard in areas of sagebrush and other shrubby habitat to be impacted 35 by ground disturbing activities. If northern sagebrush lizards are discovered, the site 36 certificate holder shall contact and consult Oregon Department of Fish and Wildlife (ODFW) 37 and the department to determine appropriate measures to avoid or minimize adverse 38

224 ASC, Exhibit Q, Q-11. 225 ASC, Exhibit Q, Q-12. 226 ASC, Exhibit Q, Q-12.


effects, including spatial restrictions. Construction activities shall be restricted until 1 consultation with ODFW has occurred. 2

3 Condition I.3: Prior to beginning construction, the site certificate holder shall examine any 4 structures within the construction corridor for bat roosts. If any bat roosts are discovered, 5 construction shall be restricted and the site certificate holder shall consult with Oregon 6 Department of Fish and Widlife and the department to determine appropriate measures to 7 avoid and/or minimize adverse effects. 8

9 Condition I.4: Prior to beginning construction, the site certificate holder shall conduct pre-10 construction surveys for Washington Ground Squirrels (WGS) in any areas with suitable 11 habitat, using a qualified professional biologist that has experience in detection of WGS. The 12 certificate holder shall provide written reports of the surveys to the department and the 13 Oregon Department of Fish and Wildlife (ODFW). If any project components that require 14 ground disturbance are located within 1,000 feet of potential WGS habitat (excluding tilled 15 agricultural land or developed areas as it is not suitable for WGS foraging or burrowing), the 16 site certificate holder shall conduct transect surveys to determine if squirrels are present. If 17 WGS are present within the 1,000 foot-buffer, the certificate holder shall identify the 18 boundaries of the Category 1 WGS habitat in the report to the department and ODFW and 19 construction shall be restricted until appropriate measures are determined, which shall 20 include but not be limited to WGS habitat marking with high visibility flagging or makers. 21

22 Condition I.5: The site certificate holder shall conduct pre-construction surveys for 23 Robinson’s onion and Laurence’s milkvetch prior to conducting any ground-disturbing 24 activities in areas with suitable habitat. If any plants are discovered, the site certificate 25 holder shall consult with the Oregon Department of Agriculture and the department for 26 guidance on appropriate measures to avoid or minimize adverse effects. 27

28 Monitoring 29 30 The applicant proposes to implement the project Biological Monitoring Plan, which provides 31 goals, methods and criteria for the site certificate holder to track the successes of mitigation 32 measures designed to avoid or minimize impacts on plants and wildlife and their habitats. This 33 plan is attached and is adopted pursuant to Condition H.4, above. 34 35 Based on the foregoing findings of fact, and subject to compliance with the site certificate 36 conditions, the Council finds that the design, construction and operation of the facility, will not 37 significantly reduce the likelihood of the survival or recovery of any threatened or endangered 38 plant or wildlife species listed under Oregon law. 39 40

IV.I.2. Threatened and Endangered Species: Conclusions of Law 41 42


Based on the foregoing findings and the evidence in the record, and subject to compliance with 1 the site certificate conditions, the Council finds that the facility complies with the Council’s 2 Threatened and Endangered Species Standard. 3 4 IV.J. Scenic Resources [OAR 345-022-0080] 5 6

(1) Except for facilities described in section (2), to issue a site certificate, the Council must 7 find that the design, construction and operation of the facility, taking into account 8 mitigation, are not likely to result in significant adverse impact to scenic resources and 9 values identified as significant or important in local land use plans, tribal land 10 management plans and federal land management plans for any lands located within the 11 analysis area described in the project order. 12 13 (2) The Council may issue a site certificate for a special criteria facility under OAR 345-14 015-0310 without making the findings described in section (1). However, the Council may 15 apply the requirements of section (1) to impose conditions on a site certificate issued for 16 such a facility. 17

18 IV.J.1. Scenic Resources: Findings of Fact 19

20 OAR 345-022-0080 requires that the Council determine that the design, construction, and 21 operation of the proposed Facility will not have a “significant adverse impact” on any significant 22 or important scenic resources and values in the analysis area. 23 24 The proposed facility is not a special criteria facility under OAR 345-015-0310; therefore OAR 25 345-022-0080(2) is not applicable. 26 27 OAR 345-001-0010(53) defines ‘significant’ as: 28 29

(53) “Significant” means having an important consequence, either alone or in 30 combination with other factors, based upon the magnitude and likelihood of the impact 31 on the affected human population or natural resources, or on the importance of the 32 natural resources affected, considering the context of the action or impact, its intensity, 33 and the degree to which possible impacts are caused by the proposed action. Nothing in 34 this definition is intended to require a statistical analysis of the magnitude or likelihood 35 of a particular impact. 36

37 The applicant provided evidence about potential impacts to scenic resources in Exhibit R of the 38 application. The analysis area for the Scenic Resources standard is the area within the site 39 boundary and 10 miles surrounding the site boundary. 40 41

A. Visual Features of the Site and Proposed Facility 42


1 The energy facility site would occupy approximately 20 acres and would be constructed on a 2 flat, open field adjacent to and just north of the existing Hermiston Generating Plant. According 3 to the ASC, visible features of the Station would consist of a complex of large metal structures, 4 including four combustion turbine generator structures; four exhaust stacks; a mechanical draft 5 cooling tower; a water treatment building and water tanks; a control and administration 6 building; generators and auxiliary transformers; and a 230-kV switchyard. Another potentially 7 visible feature could be the zero liquid discharge system if the facility is unable to send 8 reclaimed water to the Hermiston Generating Plant. In addition, the facility would include a 9 natural gas-lateral pipeline, which would be underground within an existing right of way, but 10 would connect to an aboveground metering station and a step-up substation.227 The applicant 11 also proposes to reconductor an existing transmission line; however, with the exception of six 12 new poles (worst-case scenario), the reconductored line would use the existing steel monopole 13 transmission structures. For the new poles, the applicant has proposed to use poles similar in 14 height and appearance to the existing poles within the transmission line ROW.228 The tallest 15 structures associated with the proposed facility are the 90-foot emission stacks at the energy 16 facility site and the 20-foot tall step-up substation.229 17 18

B. Identification of Scenic Resources and Values 19 20 In order to determine compliance with the Scenic Resources Standard, the Council must 21 determine whether any of the land management plans in effect within the analysis area identify 22 ‘significant’ or ‘important’ scenic resources or values. The Council must then determine 23 whether the proposed facility would result in a significant adverse impact to an identified 24 ‘significant’ or ‘important’ scenic resources and values. In Exhibit R, the applicant provided a 25 list of local, state, and federal land use and management plans pertaining to the 10-mile 26 analysis area for scenic resources.230 The applicant reviewed the federal McNary Shoreline 27 Management Plan prepared by the U.S. Army Corps of Engineers; however, no other federal or 28 tribal plans addressing scenic or aesthetic resources were identified.231 In addition to the 29 federal management plan, the applicant reviewed the following local plans: Umatilla County 30 Comprehensive Plan, Umatilla County Comprehensive Plan Technical Report, City of Umatilla 31

227 ASC, Exhibit R, R-3. 228 ASC, Exhibit R, R-3. 229 ASC, Exhibit R, R-3. 230 ASC, Exhibit R, R-5. 231 The City of Hermiston, the City of Stanfield, and the City of Echo are all included within the analysis

area. Based upon a review of each comprehensive plan, no areas have been identified as an important or significant scenic resources within any of their comprehensive plans. Therefore, there are no important or significant scenic resources identified in these local plans that necessitate further consideration in this exhibit. See City of Echo Comprehensive Plan, City of Hermiston Comprehensive Plan, City of Stanfield Comprehensive Plan,


Comprehensive Plan, and the Morrow County Comprehensive Plan.232 Each of the identified 1 plans is discussed below. 2 3 McNary Shoreline Management Plan 4 The McNary Shoreline Management Plan was prepared by the Corps with a stated objective to 5 “achieve a balance between permitted private uses and resource protection for general public 6 use. Management of the shoreline will provide recreation opportunities, while protecting fish 7 and wildlife habitat, cultural resources, and the natural environment as a whole.”233 As stated in 8 the ASC, the plan does not identify or describe any significant or important scenic resources. 9 The plan does, however, identify protected shorelines. As explained in the plan, the protected 10 shore line areas are those areas that have been set aside to maintain or restore fish and wildlife 11 habitat, cultural, aesthetic, or other environmental values. However, as discussed in the ASC, 12 the facility would not cross or be visible from any protected shoreline because of intervening 13 topography, vegetation and structures. The nearest protected shoreline area to the energy 14 facility site is located more than 10 miles north and approximately 3 miles east of the new step-15 up substation. As detailed in the ASC, intervening topography, including bluffs along the river 16 edge and several low ridges, would prevent direct line-of-site to the project from the 17 shorelines. Further, tall trees and various large structures would be located between the 18 protected shoreline areas and the project that would further screen views. Therefore, 19 combined with the distances between the facility and the shoreline areas, views of the project 20 from the protected shorelines would be obscured.234 21 22 Umatilla County Comprehensive Plan and Technical Report 23 Chapter 8 of the Umatilla County Comprehensive Plan addresses “Open spaces, Scenic and 24 Historic Areas, and Natural Resources.”235 Finding No. 20 of Chapter 8 states that “Umatilla 25 County has a number of outstanding scenic views and pleasant vistas.”236 In response to the 26 finding, Policy No. 20 generally addresses the need to mitigate adverse visual impacts of 27 development and limit scenic and aesthetic conflicts. Subsection (e) of Policy 20 states that the 28 Wallula Gap has been recognized as a significant scenic area. Therefore, Wallula Gap is a 29 significant scenic resource in Umatilla County; however, it is located outside the analysis area 30 and, therefore, not further addressed. 31 32 The Umatilla County Comprehensive Plan Technical Report states that “certain developments 33 or occurrences may conflict with scenic values. Industrial plants and energy facilities may create 34 their own offensive scenic feature or obscure a natural scene…. Scenically offensive 35

232 ASC, Exhibit R, R-5. 233 ASC, Exhibit R, R-5. 234 ASC Exhibit R, R-6. 235 Chapter 8 of the Umatilla County Comprehensive plan addresses Goal 5 of the statewide planning

goals, which is “to conserve open space and protect natural and scenic resources.” 236 Umatilla County Comprehensive Plan, page 8-9. See Finding No. 20 and related Policy No. 20. Items (c),

(d) and (e) of Policy No. 20 were not included in the application because the specific sites identified are not applicable to the project.


development may ameliorate its effect by careful design, strategic placement of structures, and 1 landscaping.”237 Table D-XVII of the Technical Report lists “Outstanding Sites and Views” in 2 Umatilla County, and, as applicable to this review, identifies McNary Dam, Lake Wallula, and 3 Lake Umatilla as areas enjoyed for and developed, at least partially, for scenic value. Umatilla 4 River downstream from State Highway 207 is also included in the table as an ‘outstanding site 5 and view’ but it is not noted as being enjoyed or developed for scenic value, according to the 6 Table.238 As explained in the ASC, the McNary Dam and Lake Wallula are located approximately 7 1 mile northeast of the McNary substation and new step-up substation site.239 The Umatilla 8 River downstream from State Highway 207 meanders through mostly private lands consisting of 9 agricultural, industrial and scattered low-density residential lands. The only developed public 10 access area along the river corridor between State highway 207 and the Columbia River is 11 Riverfront Park in Hermiston about 2.9 miles northeast of the Station.240 The applicant does not 12 anticipate the facility to be easily visible or noticeable in views from the McNary Dam or Lake 13 Wallula areas because of the distance between the energy facility site and the transmission 14 line, in addition to the intervening structures, terrain and vegetation. The applicant further 15 states that views of the step-up substation from these features would be screened by the larger 16 McNary substation and intervening topography.241 The applicant explains that the Station 17 would also be screened from views of the Riverfront Park by larger buildings and the Hermiston 18 Generating Plant as well as low bluffs and tall trees along the river corridor and therefore there 19 would be no impact.242 Further, views of the step-up substation from the Umatilla River 20 downstream of State Highway 207, would be largely obscured by I-82 and the surrounding 21 industrial development.243 22 23 The City of Umatilla and Morrow County 24 Neither the City of Umatilla nor Morrow County Plans include any goals, policies, or inventories 25 identifying or protecting any specific scenic areas. The City of Umatilla Comprehensive Plan 26 identifies a section concerning Scenic Areas, however, it is identified as “reserved for 27 expansion.” The Morrow County Comprehensive Plan identifies the importance of protecting 28 open lands for their “aesthetic aspects to all of the people.” However, it further states that, 29 while Morrow County contains a variety of landscapes, many of which may be considered to be 30 scenic, the county has not designated any sites or areas as being particularly high in scenic-31 resources value. Therefore, no scenic resources were addressed or identified in the plan. 244 32 33

237 ASC, Exhibit R, R-7. 238 It is worth noting that the Umatilla County Court, in its report on the complete application, stated that

there are no inventoried Goal 5 significant visual resources in the vicinity of the project site. 239 ASC, Exhibit R, R-7. 240 ASC, Exhibit R, R-7. 241 ASC, Exhibit R, R-9. 242 ASC, Exhibit R, R-7. 243 ASC, Exhibit R, R-10. 244 ASC, Exhibit R, R-8.


Based upon the information provided, the Council finds that there are no significant or 1 important scenic resources or values located within the analysis area. 2 3

C. Analysis of Impacts of the Proposed Facility 4 5

The applicant conducted an analysis to determine whether any scenic or aesthetic resources 6 within a 10-mile radius of the proposed facility would be affected by the facility. The analysis 7 performed by the applicant included the following steps: 8 9

1. Reviewing documentation for applicable federal, tribal, state, and local planning 10 policies; 11 2. Reviewing the site plans, aerial photographs, and maps of the area surrounding the 12 project; 13 3. Nominating potential Key Observation Points from site plans, aerial photographs, and 14 maps; 15 4. Evaluating and photographing Key Observation Points in the field; 16 5. Assessing visual sensitivity of the Key Observation Points based on the types of users, 17 the amount of use, the amount of public interest and the adjacent land uses; 18 6. Determining the scenic quality based on landform, vegetation, water, color, adjacent 19 scenery, scarcity of the scenic resource, and existing cultural modifications; and 20 7. Identifying opportunities for mitigation of any impacts that may be caused by 21 construction or operation of the facility. 22 23

As explained in the ASC, the applicant’s analysis was based largely on the Federal Highway 24 Administration System for Visual Impact Assessment for Highway Projects. The applicant 25 selected this analysis because it is widely used and, according to the applicant, is a defensible 26 process for visual impact assessment and applicable for use in a broad range of landscape 27 types, including urban and other developed lands, rural and agricultural lands, and natural 28 areas.245 29 30 The Station would be built in a portion of an agricultural field that contains little to no native 31 vegetation; therefore, construction and operation of the facility would not result in a 32 substantial loss of vegetation.246 As explained in the ASC, once built, the most prominent visible 33 feature would be the four vertical 90-foot tall exhaust stacks, which would contrast strongly 34 with the generally flat landscape of the sagebrush shrub/scrub and agricultural lands. However, 35 as the ASC explains, the industrial elements of the facility would be similar to the adjacent 36 Hermiston Generating Plant located just north of the Station. Moreover, a number of other 37 industrial buildings and vertical transmission structures are located in close proximity to the site 38 that contrast with the flat, agricultural landscape character. Therefore, while the energy facility 39 would be visible from a variety of locations in the vicinity, the applicant asserts that it would be 40

245 ASC, Exhibit R, R-9. 246 ASC, Exhibit R, R-14.


similar in form, line, color, texture and scale to other nearby existing features and, 1 consequently, would not substantially alter the existing industrial characteristic of the area or 2 reduce the vividness, intactness or unity of views from locations in the surrounding area.247 3 However, because of its visibility, in order to minimize the potential visual impacts from the 4 facility on the identified scenic resources, the Council adopts the following condition: 5

6 Condition J.1: The certificate holder shall paint or otherwise finish the facility structures in 7 neutral colors with a low reflectivity finish to provide visual integration with the 8 surrounding landscape. 9

10 In addition to structures, the energy facility site would also emit water vapor plumes from the 11 cooling tower and exhaust stacks that would occasionally be visible in the surrounding area.248 12 As explained in the ASC, plumes up to 200 meters long would be visible less than 50 percent of 13 the time and plumes up to 500 meters long would be visible no more than 20 percent of the 14 time on an annual basis. The period of maximum visible plume formation would be during 15 clear, cold and calm days.249 Vapor plumes from the Station would be generally visible during 16 the same time periods and under the same weather conditions as those plumes emanating 17 from the neighboring HGP; however, the applicant anticipates the plumes from the Station to 18 occur less frequently and to be smaller in size because the proposed facility is a peaker plant, 19 and as such would operate intermittently and less often.250 Therefore, as stated in the ASC, 20 while the proposed energy facility would increase the number and add somewhat to the 21 visibility of plumes in the area, the plumes would not introduce a new element of contrast or 22 substantially increase the presence of plumes in the landscape because the plumes would occur 23 coincidentally with the larger plumes emanating from HGP. However, lighting of the station 24 would increase the visibility of the facility structures and the visibility of the plumes during dark 25 hours. Therefore, the Council adopts the following condition to restrict nighttime lighting. 26 27

Condition J.2: The certificate holder shall not use exterior nighttime lighting except: 28 29 1. The minimum exhaust stack lighting required or recommended by the Federal 30 Aviation Administration; 31 2. Safety and security lighting at the Station and step-up substation, provided that such 32 lighting is shielded or downward directed to reduce offsite glare; and 33 3. Minimum lighting necessary for repairs or emergencies. 34

35 Subject to this condition, and based upon the evidence that the proposed facility’s plume would 36 not introduce a new element of contrast and would be smaller in size than the current plume, 37

247 ASC, Exhibit R, R-15. 248 ASC, Exhibit R, R-15. 249 ASC, Exhibit R, R-15. 250 ASC, Exhibit R, R-15.


the Council finds that the visual impacts of the visible vapor plume would not be substantial 1 and certainly less than significant to identified scenic resources and values.251 2 3 Regarding visual impacts of the transmission line, as explained in the ASC, reconductoring of 4 the existing transmission line would not result in a substantial loss of vegetation and views of 5 the landscape would not be noticeably altered because the existing structures would remain in 6 place, with up to six new poles added in the worst case scenario. Further, for the new poles, the 7 applicant has proposed to use poles similar in height and appearance to the existing poles 8 within the transmission line ROW. Therefore, the applicant found visual impacts from the 9 proposed transmission line to be negligible to low.252 However, to ensure that the visual 10 impacts associated with the new poles are in fact negligible, the Council adopts the following 11 condition that requires the applicant to use poles of similar height and appearance, which 12 would allow for the new poles to blend with the existing transmission line infrastructure and 13 not drastically alter the landscape: 14

15 Condition J.3: For the new poles required for the transmission infrastructure, the certificate 16 holder shall use poles similar in height and appearance to the existing poles within the 17 transmission line right-of-way. 18

19 Considering the majority of the transmission line infrastructure is in existence and, subject to 20 compliance with the site certificate condition, the Council finds that visual impacts of the 21 transmission line would be less than significant to any scenic resources in the area. 22 23 The new step-up substation would be located 250 feet south of the McNary Substation. 24 Construction of the step-up substation would result in a loss of vegetation on the undeveloped 25 parcel; however, as explained in the ASC, existing vegetation is sparse and mostly weedy. 26 Therefore, construction of the substation would not result in the loss of vegetation that 27 contributes substantially to the visual quality of the area.253 As explained in the ASC, the tallest 28 structure in the step-up substation would be at or below 20 feet and lower than those of 29 existing structures at the McNary Substation. Therefore, according to the applicant, the 30 construction of the substation would not contrast strongly with the existing elements in view 31 and the low vividness, intactness and unity of views in the area would not be substantially 32 degraded.254 Nonetheless, the step-up substation would be visible from rural residences. 33 Therefore, the Council adopts Condition J.1., above, which requires the certificate holder to 34 paint and finish all facility structures with neutral colors and in a manner that provides visual 35 integration with the surrounding landscape and features. Subject to compliance with this 36 condition, the Council finds that the proposed step-up substation would not result in a 37 significant adverse impact to identified scenic resources and values. 38

251 ASC, Exhibit R, R-16. 252 ASC, Exhibit R, R-16. 253 ASC, Exhibit R, R-17. 254 ASC, Exhibit R, R-17.


1 Based on the evidence in the record and this analysis, the Council finds that the design, 2 construction and operation of the facility, are not likely to result in significant adverse impacts 3 to scenic resources and values identified as significant or important in local land use plans for 4 federal land management plans. 5 6

IV.J.2. Scenic Resources: Conclusions of Law 7 8 Based on the foregoing findings and the evidence in the record, and subject to compliance with 9 the site certificate conditions, the Council finds that the facility complies with the Council’s 10 Scenic Resources Standard. 11 12 IV.K. Historic, Cultural and Archaeological Resources [OAR 345-022-0090] 13 14

(1) Except for facilities described in sections (2) and (3), to issue a site certificate, the 15 Council must find that the construction and operation of the facility, taking into account 16 mitigation, are not likely to result in significant adverse impacts to: 17 18

(a) Historic, cultural or archaeological resources that have been listed on, or would 19 likely be listed on the National Register of Historic Places; 20 21 (b) For a facility on private land, archaeological objects, as defined in ORS 22 358.905(1)(a), or archaeological sites, as defined in ORS 358.905(1)(c); and 23 24 (c) For a facility on public land, archaeological sites, as defined in ORS 358.905(1)(c), 25

26 (2) The Council may issue a site certificate for a facility that would produce power from 27 wind, solar or geothermal energy without making the findings described in section (1). 28 However, the Council may apply the requirements of section (1) to impose conditions on 29 a site certificate issued for such a facility. 30 * * * 31

32 IV.K.1. Historic, Cultural, and Archaeological Resources: Findings of Fact 33

34 OAR 345-022-0090 requires the Council to find that, taking into account mitigation, the 35 construction and operation of the proposed facility is not likely to have a significant adverse 36 impact on historic, cultural, or archaeological resources, archaeological objects and 37 archaeological sites specified in OAR 345-022-0090(1). OAR 345-022-0090(2) and (3) do not 38 apply to this application because the proposed facility would not produce power from wind, 39 solar or geothermal energy and the facility is not a special criteria facility as defined in OAR 345-40 015-0310. Therefore, only the standards in OAR 345-022-0020(1)(a) through (c) apply to the 41 proposed facility. The applicant provided information regarding historic, cultural and 42


archaeological resources in Exhibit S of the application.255 The project order identifies the 1 analysis area as all areas within the site boundary. According to the ASC, the analysis area is 2 located almost entirely on private lands, with the exception of the step-up substation, which is 3 located on lands managed by BPA and the underground transmission line, which is located on 4 lands managed by the U.S. Army Corps of Engineers.256 5 6 To identify historic, cultural and archaeological resources within the analysis area, the applicant 7 conducted a records review followed by a field survey. The records review included the area 8 within and near the analysis area; the field surveys were conducted within portions of the 9 analysis area that were accessible and not previously surveyed for cultural resources.257 At the 10 direction of SHPO, the applicant did not resurvey for cultural resources in areas where there 11 was not planned ground disturbance and where previous cultural resource surveys had been 12 conducted that met the current standards and did not identify cultural resources.258 13 Additionally, two small portions of agricultural fields with crops and a section of the natural gas 14 pipeline ROW located on the west side of Cottonwood Bend Road were not surveyed due to the 15 standing crops on the fields and permission access issues with the pipeline ROW. Pedestrian 16 surveys and shovel testing was conducted on December 19 through January 21, 2012; January 3 17 and 4, 2013; and July 10 through 12, 2013. As explained in the ASC, the archaeological 18 pedestrian surveys were performed by professional archaeologists walking parallel transects 19 spaced up to 15 meters apart, in conformance with the Oregon SHPO standards and 20 guidelines.259 The applicant conducted shovel testing within portions of the analysis area where 21 ground visibility was poor and that were determined to have a high probability for containing 22 cultural resources. As stated in the ASC, a total of 33 shovel test were excavated within the 23 analysis area.260 If a shovel test detected an artifact, additional shovel tests were excavated in 24 the four cardinal directions at a distance of 5 meters to determine whether the resources were 25 isolated finds or archaeological sites. 26 27 Within the analysis area, the applicant identified eight historic-period structures, five of which 28 are considered resources eligible for listing in the National Register of Historic Places under OAR 29 345-022-0090(1)(a) because they are associated with events that have made a significant 30 contribution to the broad patterns of the area’s history.261 Those five structures include 31 Westland Irrigation District Canals, West Extension Irrigations Canals, Union Pacific Railroad 32

255 Pursuant to OAR 345-021-0010(1)(s), information concerning the location of historic, cultural and

archaeological resources and/or objects may be exempt from public disclosure under ORS 192.502(4) or 192.501(11). Therefore, the applicant submitted a cultural resource report, designated Attachment S to Exhibit S, which includes confidentially submitted maps.

256 ASC, Exhibit S, S-3. 257 ASC, Exhibit S, S-1 258 ASC, Exhibit S, S-4. 259 ASC, Exhibit S, S-4. 260 ASC, Exhibit S, S-4. 261 ASC, Exhibit S, S-1.


Messner-Hinkle Segment, Bonneville Power Administration McNary-Boardman No. 1 1 Transmission Line, and BPA McNary-Coyote Springs No. 1 Transmission Line. 2 3 The applicant found one archaeological resource on private land that fits within the definition 4 of archaeological object under ORS 358.905(1)(a). No archaeological sites were identified.262 5 Further, the applicant did not locate any archaeological objects or sites on public lands within 6 the analysis area. 7 8

A. Impacts 9 10

To avoid impacts to the five identified NRHP-eligible historic period resources, the applicant 11 proposes to coordinate with the owners/operators of each resource, prior to construction, to 12 obtain any necessary easements or approvals. Further, the applicant proposes to prevent 13 impacts to the NRHP-eligible transmission lines by avoiding the existing facilities by means of 14 either passing underneath or passing around them. Similar to the eligible transmission lines, the 15 applicant proposes to cross the railroad alignment and two canals by excavating under the 16 railroad and boring under the canals. If boring underneath the canal is not possible, the 17 applicant proposes to trench through the canal with restoration of the original alignment, 18 construction materials and design to follow.263 Based upon the applicant’s proposal to avoid 19 impacts, and to ensure compliance with the requirement to avoid resources eligible for listing 20 on the National Register of Historic Places, the Council adopts the following condition: 21

22 Condition K.1: Prior to construction, the certificate holder shall contact and coordinate with 23 each owner/operator of the identified NRHP eligible historic period resources to obtain any 24 necessary easements or approvals. The certificate holder shall ensure that a qualified 25 archaeologist, as defined in OAR 736-051-0070, instructs construction personnel in the 26 identification and avoidance of accidental damage to identified resources. Records of such 27 training shall be maintained at the administration/control building and made available to 28 authorized representatives of the department upon request. 29 30 Condition K.2: Before beginning construction, the certificate holder shall provide to the 31 department a map showing the final design locations of all components of the facility, the 32 areas that would be temporarily disturbed during construction and the areas that were 33 surveyed in 2013. 34

35 Based upon the above information and subject to compliance with the site certificate 36 conditions, the Council finds that the construction and operation of the facility are not likely to 37 result in significant adverse impacts to historic or cultural resources described in OAR 345-022-38 0090(1)(a) through (c). 39 40

262 ASC, Exhibit S, S-1. 263 ASC, Exhibit S, S-7.


However, as discussed in the ASC, some ground disturbing activities associated with 1 construction of the facility have the potential to reveal historic or cultural resources not 2 identified previously. In order to avoid potential impacts to later-discovered resources, the 3 Council adopts the following condition: 4 5

Condition K.3: The certificate holder shall cease all ground disturbing activities in the 6 immediate area if any archaeological or cultural resources are found during construction of 7 the facility. The certificate holder shall flag or mark the area and shall notify the department 8 and the Oregon State Historic Preservation Office (SHPO) of the find. A qualified 9 archaeologist shall evaluate the significance of the find. If SHPO determines that the 10 resource is significant, the certificate holder shall make recommendations to the Council for 11 mitigation, including avoidance, field documentation, and data recovery, in consultation 12 with the department, SHPO, interested tribes and other impacted parties. The certificate 13 holder shall not restart work in the affected area until the certificate holder has 14 demonstrated to the Council that it has complied with the archaeological resource 15 protection regulations. 16

17 Further, as noted in the ASC, three sections within the analysis area were not surveyed. To 18 ensure compliance with the Council’s standard and no impact to a cultural resource, the Council 19 adopts the following condition which requires the applicant to survey areas not previously 20 surveyed: 21

22 Condition K.4: The certificate holder must employ qualified personnel to conduct field 23 investigations of the section of the project’s natural gas pipeline right of way not previously 24 surveyed, prior to construction in that area. The certificate holder shall provide a written 25 report of the field investigation to the department and Oregon State Historic Preservation 26 Office (SHPO). If potentially significant historic, cultural or archaeological sites are found 27 during the field investigations, the certificate holder must instruct all construction 28 personnel to avoid the identified sites and must implement appropriate measures to 29 protect the site, including the measures described in Condition K.3. 30 31

Based on the foregoing, the Council finds that the construction and operation of the facility are 32 not likely to result in significant adverse impacts to historic, cultural, or archaeological 33 resources. 34 35

IV.K.2. Historic, Cultural, and Archaeological Resources: Conclusions of Law 36 37 Based on the foregoing findings and the evidence in the record, and subject to compliance with 38 the site certificate conditions, the Council finds that the facility complies with the Council’s 39 Historic, Cultural, and Archaeological Resources Standard. 40 41


IV.L. Recreation [OAR 345-022-0100] 1 2

(1) Except for facilities described in section (2), to issue a site certificate, the Council must 3 find that the design, construction and operation of a facility, taking into account 4 mitigation, are not likely to result in a significant adverse impact to important 5 recreational opportunities in the analysis area as described in the project order. The 6 Council shall consider the following factors in judging the importance of a recreational 7 opportunity: 8

9 (a) Any special designation or management of the location; 10 11 (b) The degree of demand; 12 13 (c) Outstanding or unusual qualities; 14 15 (d) Availability or rareness; 16 17 (e) Irreplaceability or irretrievability of the opportunity. 18 * * * 19 20

IV.L.1. Recreation: Findings of Fact 21 22 The Recreation Standard requires the Council to find that the design, construction and 23 operation of the facility are not likely to result in significant adverse impacts to ‘important’ 24 recreational opportunities. Therefore, the Council’s Recreation Standard applies to only those 25 recreation areas that the Council finds “important”, based on the factors listed in the sub-26 paragraphs of section (1) of the standard. Because the proposed facility is not a special criteria 27 facility under OAR 345-015-0310, OAR 345-022-0100(2) does not apply to the proposed facility. 28 The applicant provides evidence about potential impacts to important recreation opportunities 29 in Exhibit T of the ASC. The project order identified the analysis area for the Recreation 30 Standard as the area within the site boundary and five miles from the site boundary. 31 32 OAR 345-022-0100 requires the Council to determine that the design, construction and 33 operation of the proposed facility will not have a significant adverse impact to any recreational 34 opportunities in the analysis area. OAR 345-001-0010(53) defines “significant” as 35 36

“having an important consequence, either alone or in combination with other factors, based 37 upon the magnitude and likelihood of the impact on the affected human population or 38 natural resources, or on the importance of the natural resources affected, considering the 39 context of the action or impact, its intensity and the degree to which possible impacts are 40 caused by the proposed action. Nothing in this definition is intended to require a statistical 41 analysis of the magnitude or likelihood of a particular impact.” 42


1 To analyze the facility against this standard, the Council must first evaluate whether the 2 identified recreational opportunity is important. The Council must then evaluate whether the 3 design, construction or operation of the proposed facility could adversely impact the identified 4 important recreational opportunity. If the proposed facility could adversely impact the 5 resource, then the Council must consider the significance of the possible impact using the 6 definition of significance above. 7 8

IV.L.1.a. Important Recreational Opportunities within the Analysis Area 9 10 The majority of the area within the site boundary is located entirely on private lands, with the 11 exception of the step-up substation and the underground transmission line, which are located 12 on lands managed by BPA and U.S. Army Corps of Engineers, respectively; neither contain 13 designated recreational facilities. Recreational activities generally available in the vicinity of the 14 proposed facility include fishing, waterfowl hunting, cycling, and boating. 15 16 The applicant identified 25 recreational opportunities that it asserts satisfy the OAR 345-022-17 0100(1) criteria and, therefore, are “important” recreational opportunities under this standard. 18 The applicant listed these 25 important recreational opportunities in Table T-1 and Figure T-1 in 19 Exhibit T of the ASC. The following describes the “important” recreation opportunities 20 identified by the applicant within the analysis area and includes the Council’s findings regarding 21 the “importance” of each opportunity. Potential impacts to those identified “important” 22 recreational opportunities are then discussed in the next section. 23 24

A. State Managed Areas 25 26

The first two wildlife areas discussed below are part of the Columbia Basin Wildlife Areas, 27 which, in total, are a composition of four ODFW managed wildlife areas. Generally, these areas 28 are managed by Oregon Department of Fish and Wildlife and, as explained in the Columbia 29 Basin Wildlife Area Management Plan, are managed to provide important land base for the 30 conservation and recreation of fish and wildlife within a highly privatized and altered landscape. 31 Recreation provided by these areas include hunting, fishing, wildlife viewing, hiking, etc.264 32 Management of the areas is funded through federal excise taxes on sporting arms and 33 ammunition, in addition to hunting license dollars. 34 35 The third state managed area is a park located in Umatilla County and owned by Oregon 36 Department of Fish and Wildlife. 37 38 Irrigon Wildlife Area 39

264 Columbia Basin Wildlife Areas Management Plan, pg. 1.


The Irrigon Wildlife area consists of approximately 1,000 acres split between grassland, 1 sagebrush steppe/shrubland, and permanently and seasonally-flooded wetland. According to 2 the ASC, this wildlife area is located approximately 7.60 miles from the energy facility site and 3 1.98 miles from the step-up substation.265 As explained in the ASC, the area fronts the Columbia 4 River for approximately 7 miles and straddles Morrow and Umatilla counties. The ASC explains 5 that the area is managed for both wildlife protection and recreation. There are opportunities 6 for walking, as well as a trail riding, and two public beaches.266 The applicant proposes that this 7 is an important recreational opportunity because ODFW manages the area consistent with the 8 Columbia Basin Wildlife Areas Management Plan and, consequently, it qualifies as a “special 9 designation or management,” which is a criterion included in considering the “importance” of a 10 recreational opportunity under OAR 345-022-0100(1). Additionally, the northern boundary of 11 the Irrigon Wildlife Area is the Columbia River, which is itself an irreplaceable resource.267 12 Consequently, in addition to having a special management plan, the Irrigon Wildlife Area also 13 has outstanding qualities, not easily replaceable. Therefore, the Council finds that the Irrigon 14 Wildlife Area is an important recreational resource as defined by OAR 345-022-0100(1) because 15 the recreational opportunity is operated under a special management plan and has outstanding 16 qualities that are irreplaceable. 17 18 Power City Wildlife Area 19 Power City is another Columbia Basin Wildlife area, consisting of 100 acres split between 20 grassland and wetland (seasonal/perennial) habitat located north of Hermiston and south of 21 Umatilla. According to the ASC, Power City is located approximately 7.01 miles from the facility 22 site and 1.58 miles from the substation.268 As explained in the ASC, the area is used for hiking, 23 hunting and wildlife viewing.269 The applicant proposes that this is an important recreational 24 opportunity because ODFW manages the area consistent with the Columbia Basin Wildlife 25 Areas Management Plan and, consequently, it qualifies as a “special designation or 26 management,” which is a criterion included in considering the “importance” of a recreational 27 opportunity under OAR 345-022-0100(1).270 Based upon the special management of the area, 28 the Council finds that the Power City Wildlife Area is an important recreational resource as 29 defined by OAR 345-022-0100(1). 30 31 Steelhead Park 32 Steelhead Park is a 7.4-acre park owned by ODFW. As explained in the ASC, the area is open for 33 public access via Riverfront Park downstream for fishing, river access and hiking, though it does 34

265 ASC, Exhibit T, T-6. Note that while the applicant does include a transmission line as a related and

supporting facility, the applicant is proposing to reconductor an existing line, utilizing the existing infrastructure. Six new poles may be necessary for initial tie-in; however, Condition J.3 above requires the applicant to use poles similar to the existing infrastructure.

266 ASC, Exhibit T, T-2. 267 http://www.dfw.state.or.us/maps/wildlife_areas/irrigon-powercity-willowcreek-coyotesprs.pdf 268 ASC, Exhibit T, T-6. 269 ASC, Exhibit T, T-2. 270 ASC, Exhibit T,T-2.


not include any established trails.271 Steelhead Park is located approximately 2.48 miles from 1 the energy facility site and 6.23 miles from the step-up substation.272 The applicant proposes 2 that Steelhead park is an “important” recreational opportunity because it is owned by ODFW, 3 and, therefore, satisfies the “special designation or management” criteria under OAR 345-022-4 0100(1). However, while the park is owned by ODFW, there does not appear to be any special 5 management plan and, further, according to the ASC, ODFW does not maintain the park.273 6 Beyond the park’s proximity to the Umatilla River, Steelhead Park does not have any unusual 7 qualities. Therefore, the Council finds that this park is not an “important” recreational 8 opportunity based upon the criteria listed in OAR 345-021-0100(1). Nonetheless, impacts to this 9 park are discussed below, in consideration of the applicant’s recommendation of “importance.” 10 11

B. Federally Managed Areas 12 13

Lewis and Clark Commemorative Trail 14 As explained in the ASC, the Lewis and Clark Commemorative Trail is a day use hiking and 15 equestrian trail located along the Columbia River upstream from the McNary Dam.274 The trail 16 is managed by United States Army Corps of Engineers and is designated as one of the National 17 Scenic and National Historic Trails.275 The trail is located 10 miles from the energy facility site 18 and 2.19 miles from the substation. The applicant proposes that the trail is an important 19 recreational opportunity based upon the “special designation or management” criteria listed 20 under OAR 345-021-0100(1) due to the resource’s management by the Corps. In addition, the 21 Lewis and Clark Commemorative Trail is also unique in its historic significance to the region, 22 and, therefore, is also irreplaceable. Therefore, the Council finds that the Lewis and Clark 23 Commemorative Trail is an important recreational resources as defined by OAR 345-022-24 0100(1) due to its special management as well as its unique and irreplaceable qualities. 25 26 McNary Areas (McNary Wildlife Nature Area, McNary Dam, McNary Beach) 27 The McNary Wildlife Nature Area, as explained in the ASC, is a 318 acre day use recreation area, 28 including shoreline fishing access and boating, on Columbia River Mile 291, at Lake Umatilla. 29 The Corps manages the area, however, the ponds located within the wildlife area are stocked 30 with trout by ODFW.276 The McNary Wildlife Nature Area is located 8.55 miles from the energy 31 facility site and 0.24 miles from the step-up substation. According to the ASC, recreational 32 activities in this area consist of wildlife viewing, shoreline fishing access, boating and hiking.277 33 34

271 ASC, Exhibit T, T-3. 272 ASC, Exhibit T, T-6. 273 ASC, Exhibit T, T-6. 274 ASC, Exhibit T, T-3. 275 ASC, Exhibit T, T-3. 276 ASC, Exhibit T, T-3. 277 ASC, Exhibit T, T-3.


The McNary Dam lies immediately upstream of the Nature area and further upstream from the 1 dam is the McNary Beach. The recreational opportunities at the dam consist of day use facilities 2 and boating, including launch ramps, as well as a fish-viewing room; a powerhouse display 3 gallery; and a Pacific salmon visitor information center.278 The McNary Dam is 9.08 miles from 4 Station and 0.79 miles from the step-up substation. Finally, the McNary Beach Park is a 118-5 acre area which provides opportunities for hiking, including access to trailhead to the Lewis and 6 Clark Commemorative Trial, picnics, swimming areas, a playground and fishing access. The 7 McNary Beach Park is 9.76 miles from the energy facility site and 1.87 miles from the 8 substation.279 9 10 The applicant proposes that each of the above areas are important based upon the “special 11 designation or management” criterion of the rule because of the areas’ management by the 12 Corps. In addition, each of the areas also satisfy at least one other criteria listed under the rule. 13 The McNary Wildlife Nature Area is located on the Columbia River (which is an irreplaceable 14 resource) and provides ponds stocked by ODFW and boating. The location of the McNary 15 Wildlife Nature Area on the Columbia River is not necessarily rare, however, it does not provide 16 an outstanding quality to the area. Further, ponds stocked by ODFW are rare and are in high 17 demand in the local area. The McNary Dam is not replaceable and provides unusual qualities 18 and uncommon opportunities as the area includes the Pacific Salmon visitor information center, 19 boat launches, and a fish viewing room. Lastly, the McNary Beach Park has outstanding 20 qualities as it provides access to the trailhead to the Lewis and Clark Commemorative trail and 21 is not easily replaced considering its location on the Columbia River. Therefore, for these 22 reasons, the Council finds that the McNary Wildlife Nature Area, the McNary Dam and the 23 McNary Beach Park are important recreational resources as defined by OAR 345-022-0100(1). 24 25 Spillway Park and West Park 26 Spillway and West Park are located near the McNary Wildlife Nature Area. Both parks are 27 managed by the Corps as well. Spillway Park offers a day use area that includes picnic tables, 28 access to shoreline and shaded area. West Park offers a day use area that includes picnic 29 shelters and tables, barbeque grills, horseshoe pits, baseball fields and access to fishing.280 30 Spillway Park is located 9.37 miles from the energy facility and 0.78 acres from the substation. 31 West Park is located 8.83 miles from the energy facility and 0.24 miles from the substation.281 32 West Park is located east of the existing McNary Substation.282 As discussed above, the 33 applicant determined that these two opportunities are considered “important” based on 34 “special designation or management” criterion listed in OAR 345-022-0100(1) due to the areas’ 35 management by the Corps. While the Council appreciates the Corps’ management, the features 36 associated with the park do not qualify the park as ‘important’ based upon the criteria under 37

278 ASC, Exhibit T, T-4. 279 ASC, Exhibit T, T-4. 280 ASC, Exhibit T, T-4. 281 ASC, Exhibit T, T-6. 282 ASC, Exhibit T, T-4.


OAR 345-022-0100(1). Therefore, Council finds that the Spillway and West parks are not 1 important recreational opportunities under OAR 345-022-0100(1). Nonetheless, impacts to this 2 park are discussed below, in consideration of the applicant’s recommendation of “importance.” 3 4 Plymouth Park 5 As explained in the ASC, Plymouth Park is a 112-acre park located adjacent to the town of 6 Plymouth, Washington. The Park is situated on a high desert environment on an island on the 7 Columbia River. The park offers both a day use area consisting of picnic tables, barbeque 8 facilities, swimming and boat launch, and a campground that is suitable for recreational 9 vehicles or tent vehicles.283 The Park is part of John Day Lock and Dam, Lake Umatilla which is 10 managed by the Corps. The Park is located 8.45 miles from the energy facility and 1.45 miles 11 from the step-up substation.284The applicant contends that the area qualifies as “important” 12 based upon its management by the Corps, which is a “special designation or management.” In 13 addition, however, the Park is located on an island in the Columbia River which a rare and not 14 replaceable location. Additionally, the park offers RV camping, which is somewhat uncommon 15 on the Columbia River. Therefore, for these reasons, the Council finds that Plymouth Park is an 16 important recreational resource as defined under OAR 345-022-0100(1) because it has a special 17 designation or management and offer rare and unique recreational opportunities in the area. 18 19

C. City Parks 20 21

City of Hermiston 22 The City of Hermiston owns and manages approximately 112 acres of public park lands, 23 including 12 parks within the analysis area. Table T-1 of the ASC identifies each park managed 24 by the City within the analysis area and the distance of each park from the Energy Facility Site 25 and substation.285 As explained in the ASC, the applicant contends that because of the 26 significant usage by residents and visitors, each park should be considered an “important” 27 recreation opportunity based on the “degree of demand” criterion listed in OAR 345-022-28 0100(1).286 While the Council agrees that high degree of demand is one consideration, the 29 Council finds that only the Hermiston Family Aquatic Center, Theater Sports Park, Oxbow Trail 30 and Riverfront Park qualify as important recreational opportunities under the standard. The 31 Hermiston Family Aquatic Center provides recreational water activities, including swim lessons, 32 aqua fitness classes and lifeguarding. This type of recreational opportunity is not readily 33 available elsewhere in the area. Likewise, Theatre Sports Park offers an array of sports fields 34 including two adult softball fields, sand volleyball courts and a youth football and soccer field. 35 Additionally, Oxbow Trail is the only true separate multi-modal path trail, while the Riverfront 36 Park includes a walking path, fishing access and a non-motorized boat launch. Therefore, the 37 Council finds that the Hermiston Family Aquatic Center, Theater Sports Park, Oxbow Trail and 38

283 ASC, Exhibit T, T-4. 284 ASC, Exhibit T, T-6. 285 ASC, Exhibit T, T-5. 286 ASC, Exhibit T, T-5.


Riverfront Park qualify as important because beyond being in high demand all four offer unique 1 and rare recreational opportunities that are not widely available in the area. 2 3 City of Umatilla 4 As explained in the ASC, the City of Umatilla operates several parks, which provide access to the 5 Umatilla and Columbia rivers. Table T-1 of the ASC identifies each park operated by the City 6 within the analysis area and the distance of each park from the energy facility site and 7 substation. As stated in the ASC, the applicant proposes that all identified City of Umatilla parks 8 should be considered “important” because of the parks’ locations in proximity to the rivers, 9 which provides “outstanding qualities.” In addition, however, Umatilla Landing and Umatilla 10 Marina Park are irreplaceable in that they serve each year as the location for the Umatilla 11 Landing Day’s, which commemorates and celebrates the city’s history as the first community in 12 Eastern Oregon and the first county seat. For these reasons, the Council concurs finds that the 13 City of Umatilla parks are important recreational opportunities, as defined under OAR 345-022-14 0100(1) because of their “outstanding qualities” due to their close proximity to the Umatilla 15 and Columbia rivers. 16 17

IV.L.1.b. Potential Impacts to Important Recreation Opportunities 18 19 None of the recreational opportunities identified above would be directly impacted by 20 construction and operation of the facility.287 Therefore, as explained in the ASC, any potential 21 impacts to important recreational opportunities would result from indirect impacts of the 22 construction and operation of the proposed facility.288 23 24

A. Noise 25 26

Construction of the project would result in short-term increase in noise levels; however, as 27 explained in the ASC, the applicant does not anticipate any long-term impacts on the identified 28 recreational opportunities from noise. In Exhibit X, the applicant provided information about 29 the predicted noise levels resulting from construction and operation of the facility. As 30 previously explained, the DEQ noise rules address compliance at identified “noise sensitive 31 receptors.” Because the recreational opportunities closest to the proposed facility site are not 32 designated noise-sensitive receptors, there are no applicable noise requirements contained in 33 the DEQ noise regulations addressed at OAR Chapter 340, Division 25. However, the applicant’s 34

287 A comment submitted in response to the DPO, requests that a condition be included to protect the

Oregon Trail and other historic trails recognized in Oregon. The comment did not cite any applicable Council standard, provide any specific concerns regarding the DPO, or request particular revisions of the DPO. Based upon the evidence provided in the ASC, the proposed facility would not result in a significant adverse impact to any identified trail under the Council’s standards Therefore, in consideration of the evidence provided in the ASC, the Council does not make any revisions or require additional conditions. PERAPPDoc32.

288 ASC, Exhibit T, T-7.


evidence regarding compliance with these regulations is at least relevant in considering the 1 potential impacts of the facility on recreational opportunities in the analysis area. 2 3 The closest recreational opportunity to the energy facility site is Steelhead Park at 2.48 miles 4 away, and the closest recreational opportunities to the step-up substation are the McNary 5 Wildlife Nature Area and West Park, both 0.24 miles (1267.2 feet) from the substation. As 6 stated in Exhibit X, the closest noise sensitive receptor to the Station is located 2,970 feet away. 7 The Station operating at its loudest condition, according to the ASC, would contribute 47.1 dBA 8 to the existing ambient noise level at 2,970 feet away, which would not result in an increase 9 exceeding 10 dBA. Likewise, at 958 feet away the predicted sound level resulting from 10 operation of the substation would be 38.2 dBA,289 which would not result in an increase 11 exceeding 10 dBA. 12 13 Given the distances of the closest recreational opportunities to the facility, the applicant states 14 that it does not expect facility construction or operation to result in a significant adverse noise 15 impact on any recreational opportunity within the analysis area.290 Due to the distances 16 between the recreational opportunities and the facility, and given that the facility would not 17 result in an increase greater than 10 dBA at locations closer to the facility than the identified 18 protected areas, the Council finds that construction and operation of the facility would not 19 result in a significant adverse noise impact to any important recreational opportunity. 20 21

B. Increased Traffic 22 23

As explained in the ASC, the estimated peak-traffic associated with the facility within the 24 analysis area is expected to be about 200 vehicles during the daily morning and evening 25 commutes over the course of the construction phase of the project. For operation of the 26 project, the applicant anticipates six to eight full time personnel, which would cause an increase 27 in traffic of approximately five to ten vehicles per day.291 As discussed in the ASC, project 28 related would occur primarily at the Interstate Highway 84 and Westland Road interchange and 29 important recreational opportunities are not available near these roads. Consequently, the 30 applicant does not anticipate any significant adverse traffic impacts to the recreational 31 opportunities resulting from construction and operation of the project. Based upon the 32 evidence that the majority of project related track would occur at the I-84/Westland Road 33 interchange and no recreational opportunities are accessed near this interchange, the Council 34 finds that the facility will not result in any significant adverse traffic related impacts to 35 important recreational opportunities. 36 37

C. Visual Impacts 38 39

289 ASC, Exhibit X, X-7. 290 ASC, Exhibit T, T-8. 291 ASC, Exhibit T, T-8.


To analyze visual impacts resulting from the facility, the applicant conducted a viewshed 1 analysis. Based upon that analysis, the applicant determined that station structures would be 2 potentially visible from portions of the City of Hermiston Parks (Sunset, McKenzie, Newport and 3 the Hermiston Family Aquatic Center).292 Additionally, the step-up substation would be 4 potentially visible from portions of Plymouth Park, McNary Wildlife Nature Area, McNary Dam, 5 Spillway Park, McNary Beach, and two City of Umatilla Parks (Umatilla Marina Park and Nugent 6 Park). For the analysis, the tallest structures at the station and step-up substation were used, 7 with the stack height representing 90 feet high and the step-up substation height representing 8 at 20 feet. While the visual analysis determined that facility structures would be potentially 9 visible at some important recreational opportunities, as explained in the ASC, visibility or visual 10 impact to those recreational opportunities is unlikely because the “bare earth” analysis 11 considered only topography and not the existing built structures.293 Therefore, as discussed in 12 the ASC, it is unlikely that the station and substation would be visible from any of the identified 13 recreational areas because all important recreational opportunities that would be potentially 14 impacted visually by the station are located within the City of Hermiston and separated from 15 the station by a distance of at least 1 to 2 miles of urban development, in addition to the 16 industrial development immediately adjacent to the Station.294 Further, the applicant 17 anticipates that the step-up substation would not visible from the majority of the potentially 18 impacted important recreational opportunities because the McNary substation would be 19 located directionally between the step-up substation and all of the identified important 20 recreation areas, with the exception of Nugent Park. However, Nugent Park is separated from 21 the station by over 1 mile of urban development in the City of Umatilla.295 Therefore, the 22 applicant proposes that it is unlikely the step-up substation would result in a significant adverse 23 visual impact to Nugent Park considering the distance and current development in the city. 24 Because of the distance between the recreational opportunities and the station and substation, 25 as well as the development between the areas, the Council agrees that the construction and 26 operation of the facility, would not result in a significant adverse visual impact to any of the 27 important recreational opportunities within the analysis area. 28 29 As noted in the ASC, the additional plume from the project would increase the number and add 30 to the visibility of the plumes in the area. However, the plumes are not a new element of 31 contrast to the landscape and would not substantially increase the presence of plumes in the 32 area, considering the existing industrial facilities.296 For those reasons, the Council agrees with 33 the applicant’s assessment that the facility’s plume would not result in a significant adverse 34 visual impact to recreational opportunities in the analysis area. 35 36

292 ASC, Exhibit T, T-9. 293 ASC, Exhibit T, T-9. 294 ASC, Exhibit T, T-9. 295 ASC, Exhibit T, T-9. 296 ASC, Exhibit T, T-9.


Based on the foregoing, the finds that the design, construction and operation of the facility are 1 not likely to result in a significant adverse impact to any important recreational opportunities in 2 the analysis area. 3 4

IV.L.2. Recreation: Conclusions of Law 5 6 Based on the foregoing findings and the evidence in the record, the Council finds that the 7 facility complies with the Council’s Recreation Standard. 8 9 IV.M. Public Services [OAR 345-022-0110] 10 11

(1) Except for facilities described in sections (2) and (3), to issue a site certificate, the 12 Council must find that the construction and operation of the facility, taking into 13 account mitigation, are not likely to result in significant adverse impact to the ability 14 of public and private providers within the analysis area described in the project order 15 to provide: sewers and sewage treatment, water, storm water drainage, solid waste 16 management, housing, traffic safety, police and fire protection, health care and 17 schools. 18 19 (2) The Council may issue a site certificate for a facility that would produce power 20 from wind, solar or geothermal energy without making the findings described in 21 section (1). However, the Council may apply the requirements of section (1) to 22 impose conditions on a site certificate issued for such a facility. 23 * * * 24 25

IV.M.1. Public Services: Findings of Fact 26 27 The Council’s Public Services standard requires the Council to identify likely significant adverse 28 impacts to the ability of public and private service providers to supply sewer and sewage 29 treatment, water, storm water drainage, solid waste management, housing, traffic safety, 30 police and fire protection, health care, and schools. OAR 345-022-0110(2) and (3) do not apply 31 to the proposed facility because it would not produce power from wind, solar or geothermal 32 energy, and the facility is not a special criteria facility as defined in OAR 345-015-0310. 33 Therefore, only the criteria specified in OAR 345-022-0110(1) apply to the proposed facility. 34 35 The applicant provided information in Exhibit U about the potential impacts of the facility on 36 public services. The project order identified the analysis area for the standard as the area within 37 the site boundary and 10 miles from the site boundary. The project would be located in 38 Umatilla County, Oregon approximately 3 miles southwest of the Hermiston city limits. 39 However, the analysis area also includes parts of Morrow County, Oregon, and Benton County, 40 Washington. As explained in the ASC, for purposes of potential impacts to public services, the 41 applicant analyzed only impacts to Oregon communities because 1) the areas of Benton County 42


that fall within the analysis area have very low populations that do not include any 1 incorporated areas; and 2) the large number of service providers available in Oregon.297 While 2 the public services standard does not exclude consideration of impacts to public services out of 3 the state of Oregon, the Council finds that, because of the reasons provided by the applicant, in 4 addition to the geographic barrier formed by the Columbia River, the proposed facility would 5 not likely impact service providers within the portion of the analysis area that lies in 6 Washington State. 7 8

A. Sewage, Storm Water, and Solid Waste 9 10

During construction the applicant proposes to utilize a contractor to bring portable toilets to 11 the site and manage and transport any sanitary sewage offsite. According to the ASC, the 12 American National Standards Institute calls for one portable toilet per 10 workers for a 40-hour 13 work week. For a peak construction crew, the applicant anticipates approximately 225 workers; 14 therefore, approximately 25 portable toilets would be required.298 The closest wastewater 15 treatment plant in the analysis area is the City of Hermiston’s Recycled Water Facility. The 16 facility currently has a receiving capacity of 1.7 million gallons per day of sewage and the 17 capacity was expected to increase to 3.4 million in November of 2014 when a new plant came 18 online.299 According to staff at the Recycled Water Facility, the volume of wastewater 19 associated with 25 portable toils would not have any impact on the ability of the facility to 20 provide service.300 During operation, the applicant proposes that sewage collection, treatment 21 and disposal would be conducted through an onsite septic system, which would require no 22 service providers.301 Therefore, there would be no adverse impacts to service providers related 23 to operational sewage. Based upon the anticipated number of portable toilets during 24 construction of the facility, and in consideration of the receiving capacity of the City of 25 Hermiston’s Recycled Water Facility, the Council finds that the facility would not impact the 26 ability of City of Hermiston’s Recycled Water Facility to continue to provide service to the area. 27 28 The applicant proposes to retain stormwater during construction onsite through a system of 29 berms and ditches directing stormwater to detention basins. The applicant states that during 30 construction, stormwater runoff would be controlled and treated, utilizing best management 31 practices, in accordance with its NPDES 1200-C application submitted to DEQ. (See Section D 32 above, for a further discussion re: soil protection and site certificate conditions).302 During 33 operation, the applicant plans to divert stormwater into an onsite 0.9 acre lined detention 34 basin.303 Based upon the above information, management of stormwater would be treated and 35

297 ASC, Exhibit U, U-2. 298 ASC, Exhibit U, U-11. 299 ASC, Exhibit U, U-11. 300 ASC, Exhibit U, U-11. 301 ASC, Exhibit U, U-4. 302 ASC, Exhibit U, U-6. 303 ASC, Exhibit U, U-6.


retained onsite, therefore, independent of any community systems and consequently without 1 impact to any public or private service providers. 2 3 The applicant proposes to minimize solid waste generated during construction and to recycle as 4 much material as possible. However, for solid waste that cannot be recycled, the applicant 5 proposes to transport solid waste to the nearest approved landfill, the Finley Buttes Regional 6 Landfill.304 Total solid waste production during construction is estimated at approximately 2.5 7 tons per month over the 18 months of significant construction.305 Based upon the capacity of 8 the landfill, which has an annual receiving capacity of 1,000,000 tons of waste and an estimated 9 life of over 200 years the applicant anticipates that facility construction would not pose a 10 significant impact on the ability of the provider. 11 12 During operation, the applicant estimates that the Station would produce approximately 10 13 tons per year of refuse during normal operation, assuming no ZLD system. If a ZLD systems is 14 utilized, it would produce approximately 1,540 tons per year of crystallized solids that would be 15 disposed of as solid waste via landfill.306 As explained above and in the ASC, the Finley Buttes 16 Regional Landfill has an estimated life of over 200 years and an annual receiving capacity of 17 1,000,000 tons of waste.307 The Landfill currently receives 600,000 tons per year. Additionally, 18 the contracted solid waste management provider in Western Umatilla County is Sanitary 19 Disposal, Inc. and it is anticipated that this provider would provide solid waste pick-up during 20 operations, which would then deliver the waste to Finley Buttes Regional Landfill. According to 21 the ASC, Sanitary Disposal, Inc. has confirmed it could handle an average of 30 tons/week 22 without affecting its ability to provide waste disposal services in the area;308 therefore, the 23 facility would not have a significant adverse impact on the service provider. Further, based 24 upon the capacity of the landfill, the applicant proposes that the facility’s operational waste 25 would not significantly impact the ability of the provider to provide solid waste management.309 26 27 Based upon the above information, the Council concurs that the amount of waste to be 28 generated by the facility during construction and operation would not impact the ability of 29 those providers to continue to provide service in the area based upon available capacity of the 30 identified service providers in the analysis area. 31 32

B. Water 33 34

304 ASC, Exhibit U, U-13. 305 ASC, Exhibit U, U-13. 306 ASC, Exhibit U, U-14. 307 ASC, exhibit U, U-14. 308 ASC, Exhibit U, U-14. 309 ASC, Exhibit U, U-14.


The applicant anticipates using approximately 2.3 million gallons of water over the entire 1 construction period.310 As explained in the ASC, all non-potable water used for construction 2 would be obtained from the Port of Umatilla. Non-sewage construction wastewater would 3 either be trucked offsite for processing and disposal in an approved facility or routed to the 4 Hermiston Generating Plant to supplement its cooling tower makeup water demand.311 5 6 During operation, under normal operating conditions, the applicant anticipates using 1,319 7 gallons per minute of raw water for industrial purposes. During the summer months, the raw 8 water use would be slightly higher, at 1,637 gallons per minute.312 As explained in the ASC, the 9 Port of Umatilla would supply raw water via a new pipeline from the Hermiston Generating 10 Plant, with a dedicated capacity of 2,000 gallons per minute. 2.3 million gallons of water for 11 construction would be less than 20 hours of the dedicated 2,000 gpm allocation of water 12 available for the facility from the Port. The applicant anticipates potable water needs to be less 13 than 5,000 gallons per day during operation and would either be supplied from an onsite well 14 or from a tie-in to the Port of Umatilla raw water line, with appropriate supplementary 15 treatment. Therefore, because of the limited amount of potential potable water needs, a 16 groundwater permit is not required pursuant to statute. As explained in the ASC, the Port of 17 Umatilla’s permit allows the Port to appropriate up to 155 cubic feet per second of Columbia 18 River Water. By 2027, the Port estimates water demand to be about 59 cubic feet per second, 19 which is only 38 percent of its allocation to provide water to its entire service area.313 20 Therefore, even fully utilized, the 2,000 gallons per minute reserved allocation for the project is 21 only 2.9 percent of the Port’s total allocation and the Port has confirmed the availability of raw 22 water in a letter to the applicant, as provided in the ASC.314 Accordingly, based upon the 23 anticipated water use of the facility during construction and operation and the Port’s stated 24 ability to supply the necessary water, the Council finds that the construction and operation of 25 the facility would not likely result in a significant adverse impact to water providers in the 26 analysis area. 27 28 With regard to disposal of operational wastewater, the applicant intends to route all industrial 29 wastewater discharges to the Hermiston Generating Plant for reuse as make-up cooling 30 water.315 However, if that is not option is not available for the reasons discussed above, the 31 applicant proposes to treat water onsite through a high-efficiency reverse osmosis process then 32 return the treated wastewater to the plant as a new process water, which would reduce the 33 demand for raw water from the Port of Umatilla.316 Regardless of which option is used, neither 34

310 ASC, Exhibit U, U-12. 311 ASC, Exhibit U, U-4. 312 ASC, Exhibit U, U-5. 313 ASC, Exhibit U, U-12. 314 ASC, Exhibit U, U-12. 315 ASC, Exhibit U, U-12. 316 ASC, Exhibit U, U-13.


requires the assistance of a service provider. Therefore, the Council finds that there would not 1 be any impacts as a service provider would not be relied upon. 2 3

C. Housing 4 5

According the ASC, there are a total of 35,135 housing units in Morrow and Umatilla counties. 6 Morrow county has a vacancy rate of approximately 11.8 percent and for Umatilla County, 7 approximately 9.4 percent.317 For the City of Hermiston, the community in closest proximity to 8 the project, there are 6,373 housing units with a vacancy rate of 5.1 percent.318 9 10 During the peak of construction, the applicant anticipates 200 to 225 construction workers 11 would be employed at the project site.319 The ASC estimates that, based upon the location of 12 the project, up to 65 percent of the construction workers may come from outside the analysis 13 area. However, the applicant anticipates that only 10 percent of the in-migrating workers would 14 rent or buy housing in the area because the majority are expected to be traveling construction 15 workers who will use their own travel trailers.320 Therefore, the applicant does not anticipate 16 any impact to housing from construction of the facility because it anticipates no more than 15 17 housing units to be rented or bought in the area by in-migrating construction workers.321 Based 18 upon the necessity of only 15 housing units during construction, and the amount of vacancy in 19 the area, the Council concurs with the applicant’s assessment and finds that there would not be 20 an adverse impact on housing in the area from construction of the facility. 21 22 During operation, the applicant anticipates no more than six to eight permanently employed 23 staff, which, the applicant states would have an insignificant impact on the availability of local 24 housing.322 Based upon the information provided by the applicant regarding housing and 25 vacancy in the area, the Council concurs that six to eight full time employee would not 26 adversely impact housing in the area as the area could absorb additional residents. Therefore, 27 the Council finds that operation would not adversely impact housing. 28 29

D. Traffic Safety 30 31

The total construction period for the project is anticipated to last approximately 16 months and 32 at peak construction, 225 workers could be employed at the site, all working the same day 33 shift. In addition, 40 truck deliveries are assumed to be distributed evenly throughout the day 34 shift. During operation, only six to eight full-time employees are anticipated. Based on the 35 applicant’s traffic impact analysis, the public roadways and intersections in the vicinity of the 36

317 ASC, Exhibit U, U-10. 318 ASC, Exhibit U, U-10. 319 ASC, Exhibit U, U-3. 320 ASC, Exhibit U, U-16. 321 ASC, Exhibit U, U-16. 322 ASC, Exhibit U, U-16.


project would continue to operate within the applicable performance standards established by 1 Umatilla County and the Oregon Department of Transportation during both construction and 2 operation. No safety deficiencies or crash patterns were identified at study intersections; and 3 the proposed site access on Westland Road conforms to Umatilla County’s access management 4 guidelines and would provide adequate access for trucks during construction and operation, 5 assuming all access comes from the south.323 While the traffic analysis indicates that the 6 impacts associated with construction and operation of the facility are anticipated to be minimal 7 and not result in a significant adverse impact to traffic safety, the Council adopts the following 8 conditions to ensure safe access: 9 10

Condition M.1: During construction of the facility, the certificate holder shall implement the 11 following measures: 12 13

(a) The certificate holder shall mount a right-turn prohibition sign with a supplemental 14 “TRUCKS” rider plaque facing the westbound (driveway) approach; 15 (b) The certificate holder shall mount a left-turn prohibition sign with a supplemental 16 “TRUCKS” rider plaque facing the southbound (Westland Road) approach; 17 (c) Prior to truck delivery of any oversize loads, a formal routing and delivery plan shall 18 be developed by the certificate holder in conjunction with the department, in 19 consultation with the Oregon Department of Transportation and Umatilla County; and 20 (d) The certificate holder shall locate and maintain landscaping, and signing around 21 aboveground utilities so that adequate sight distance is maintained. 22 23

Condition M.2: Before beginning construction of any new road approaches or utility 24 crossings, the certificate holder shall obtain all required permits from Umatilla County. 25 26 Condition M.3: Upon completion of construction, the certificate holder shall restore public 27 roads to pre-construction conditions or better to the satisfaction of the Umatilla County 28 Public Works Department. 29 30

In addition to traffic impacts associated with the proposed facility, ground level fogging and 31 potential icing because of the cooling tower plume could also impact driving conditions. The 32 applicant provided information about cooling tower effects in Exhibit Z of the application. As 33 explained above, the Station would utilize a mechanical-draft “wet” cooling tower. Mechanical 34 draft cooling towers use fans to force air into the cooling tower and through a fine spray of 35 heated water, where evaporation cools the water stream and transfer heat to the air. The 36 warm, moist air exhausts vertically, dispelling excess heat. When the warm, moist exhaust 37 comes into contact with the cooler ambient atmosphere, the water vapor condenses into fine 38 water drops, creating a visible “steam” plume.324 39 40

323 ASC, Exhibit U, U-16. 324 ASC, Exhibit Z, Z-3.


As explained in the ASC, fogging from the plume may occur when the visible plume reaches the 1 ground, and ice formation occurs when the visible plume reaches the ground under freezing 2 conditions. The applicant conducted an analysis of the steam plume using the Seasonal/Annual 3 Cooling Tower Impact model. As stated in the ASC, this model was created by Argonne National 4 Laboratories in the mid-1980’s to better evaluate impacts associated with water vapor plumes 5 emitted from cooling towers. The model was used to assess plume visibility, deposition of 6 cooling tower drift, ground-level fogging and icing, and shadowing by the plume and reduction 7 of solar energy.325 For ground level fogging and ice formation, the model used actual 8 meteorological data (five years) to conservatively predict the occurrence of ice formation and 9 other parameters. Based upon the results of the model, potential fogging impacts would be 10 limited to 25 hours a year at locations immediately adjacent (within 150 meters/492 feet) of 11 the Station and about 5 hours a year at distances of up to 800 meters (2,625 feet) from the 12 cooling tower.326 The area of land potentially affected by fogging would be limited to an area 13 northeast, and to a lesser extent, to the southwest of the Station’s cooling tower. Westland 14 Road is the nearest road in this area and located largely to the West at a distance of 15 approximately 300 meters. I-82 and I-84 are located approximately 1,000 meters to the west 16 and southwest. The applicant anticipates that traffic hazards due to fogging of roadways would 17 be minimal and the percentage of time that the plume would extend over the roadways would 18 be fairly limited.327 19 20 As stated in the ASC, based upon the results of the model, the horizontal and temporal extent 21 of ice formation due to the Station’s cooling tower plume would be limited, occurring only 22 toward the south and southwest for 1 hour or less at 500 meters. In addition, there are no 23 public roads within the 500 meters and few service roads in the area. Further, according to the 24 ASC, the cumulative plume analysis showed no appreciable increase to impacts from icing 25 considering the current plume from HGP.328 Therefore, the applicant anticipates traffic hazards 26 due to ice formation on roadways to be negligible and no potential significant adverse impacts. 27 28 While the results of the model indicate that fogging and icing due to the facility’s steam plume 29 would be very limited and the impacts negligible, there remains the potential for traffic safety 30 to be impacted. Because of the potential for traffic safety impacts due to operation of the 31 proposed facility’s steam plume, in the DPO the department recommended the Council adopt 32 Condition M.4., which would require the certificate holder to report any complaints received 33 regarding icing and fogging attributable to the proposed facility and the certificate holder to 34 cooperate with the appropriate local public safety authorities to implement reasonable safety 35 measures. However, in comments submitted in response to the DPO, the Umatilla County 36

325 ASC, Exhibit Z, Z-3. 326 ASC, Exhibit Z, Z-12. 327 ASC, Exhibit Z, Z-14. 328 ASC, Exhibit Z, Z-14. Note to assess the combined plumes’ impacts (the Station and the existing HGP),

the applicant combined and modeled the two as if it were one existing tower.


Board of County Commissioners329 requested that the Council require the applicant to enter 1 into a ‘development agreement’ with the County. As explained in the County’s comment, the 2 development agreement would require the certificate holder to undertake roadway or access 3 improvements as recommended by the County Public Works Director and would require the 4 certificate holder to share in the cost and mitigation efforts related to any increased fogging 5 and icing on the roadway that is attributable to the proposed facility.330 The applicant proposed 6 condition language in response to the County’s comment, which the Council reviewed during its 7 DPO review. In consideration of the County’s comments and the applicant-proposed condition 8 language, the Council adopts Condition M.4., as provided below: 9 10

Condition M.4: Prior to beginning construction, the certificate holder shall enter into a 11 development agreement with Umatilla County to provide roadway and access 12 improvements recommended by the Umatilla County Public Works Director in conjunction 13 with construction and operation of the energy facility and to pay the certificate holder’s 14 proportionate share of Umatilla County’s costs of implementing measures to address 15 fogging and icing on County roads potentially impacted by the operation of the energy 16 facility.” 17 18

The ASC provides an evaluation of the plume’s potential impact on the operations of the 19 Hermiston Airport, which includes a qualitative assessment of the combined visual plumes, of 20 both the facility and the HGP, to assess whether the visual plume could impact a pilot’s visual 21 reference on approach or take off. The Hermiston Airport is located approximately 5.3 miles to 22 the east northeast of the proposed Station site.331 According to the ASC, the Hermiston Airport 23 Authority staff and Oregon Department of Aviation were consulted prior to the study. For the 24 combined plume analysis, both the existing cooling tower of the Hermiston Generating Plant 25 and the proposed tower were combined into one hypothetical cooling tower. As presented in 26 the ASC, the results show a slightly increased chance of a visual plume formation at distances 27 toward the Hermiston Airport. However, Figure Z-4 of the application shows that the percent 28 of plume impacts (when occurring) to be less than one percent of the time at distances of 29 approximately 3.8 miles from the project site or within 2.2 miles of the airport. At a distance of 30 about 5.0 miles from the airport, the frequency rises to two percent of the time.332 Therefore, 31 the applicant concluded that the cooling tower plume would not generate a significant adverse 32 visual impact in the general locale of the Hermiston airport. Based upon the information 33 provided, the Council concurs that the impact from the proposed cooling tower plume would 34 pose an insignificant impact to the Hermiston Airport.333 Nonetheless, the Council adopts the 35

329 PERAPPDoc31. 330 Ms. Echeverria also provided oral testimony during the public hearing regarding the potential impact of

the steam plume and icing and fogging on the roadway. PERAPPDoc33. 331 ASC, Exhibit Z, Z-1. 332 ASC, Exhibit Z, Z-10. 333 The department received oral testimony during the public hearing generally addressing steam plumes

from natural gas facilities and their ability to impact aircraft up to 1000 feet above the plume as well as drones. The commenter requested a condition be included that would require the certificate holder to affirm


following condition to ensure that the facility structures do not impact operations at the 1 Hermiston Airport. 2 3

Condition M.5. Before beginning construction, the certificate holder shall submit Notice(s) 4 of Proposed Construction or Alteration to the Federal Aviation Administration and the 5 Oregon Department of Aviation. The certificate holder shall promptly notify the department 6 of the responses from the FAA and Oregon Department of Aviation. 7 8 E. Police and Fire Protection 9

10 The applicant contacted the following entities regarding potential impacts on law enforcement 11 and fire protection services: 12 13

Oregon State Police 14

City of Hermiston Police Department; and 15

Hermiston Fire & Emergency Services334 16 17

As explained in the ASC, the Oregon State Police are responsible for primary law enforcement 18 for state facilities, such as state roads and, as needed, support for local law enforcement 19 authorities. For Umatilla County the State Police work out of the Pendleton Area Command, 20 with a work site in Hermiston.335 As discussed in the ASC, the Hermiston work site is supported 21 by five troopers and one sergeant. There are two 8-hour shifts that run from 6 a.m. to 4:00 p.m. 22 and 4:00 p.m. to 2:00 a.m. The State police have mutual aid agreements with the respective 23 County Sheriff’s Offices. These agreements, as described in the ASC, position the Sheriff’s office 24 as the primary law enforcement agency, with the state police providing backup as needed.336 25 While only a small segment (approximately 1.5 miles) of the transmission line ROW will be 26 located within the City of Umatilla, the City Police Department could provide backup support if 27

that there will not be any conflict with the military training sites. The testimony provided did not cite any applicable Council standards, any evidence in the record, or any section of the DPO that warranted the requested condition. Nor did the commenter provide any facts to support the inclusion of the requested condition. As addressed above, the proposed facility is proposed to be located in Umatilla County, Oregon, and it would not be located within a military training route. Additionally, while they were provided Notice, the United States Department of Defense/U.S. Navy did not provide comment on the proposed facility on the record of the public hearing. Further, the applicant analyzed the impacts of the proposed facility’s plume on Hermiston Airport, which is located approximately 5.3 miles to the east of the proposed facility site. In consultation with the Hermiston Airport as well as the Oregon Department of Aviation, the applicant conducted a qualitative assessment of the combined plumes of the proposed facility and the existing Hermiston Generating Plant. Based upon the results of that study, the applicant determined the visual impacts of combined plumes would be insignificant on the airport. Based upon the above considerations, the Council is making no additional revisions or requiring additional conditions. PERAPPDoc33.

334 The applicant also attempted to contact Umatilla County Sheriff’s Office for consultation; however, there were no responses by either Undersheriff Littlefield or Sheriff Rowan. ASC, Exhibit U, U-7. 335 ASC, Exhibit U, U-8. 336 ASC, Exhibit U, U-8.


needed. As stated in the ASC, the City Police Department has a total of 227 paid and volunteer 1 personnel, including positions for four sergeants and 12 patrol officers. In addition, the City has 2 four detective staff positions.337 3 4 The project site is located within the Hermiston Fire and Emergency Services District. The ASC 5 explains that the district has a total of 43 paid and volunteer fire and rescue personnel.338 The 6 closest station to the project site is Station #3, which is located approximately 2 miles from the 7 project site. Station #3 maintains a ladder truck with a 75-foot delivery system capable of 8 dispensing water or foam, plus additional fire trucks, pumper trucks, water tenders, and two 9 hazardous material teams with support vehicles.339 Additionally, the State of Oregon has 13 10 Regional Hazardous Materials Emergency Response Teams that are charged with protecting life 11 and the environment by responding to chemical emergencies and minimizing the dangers 12 associated with them. The project is located within the Region 10 team boundary and that team 13 is led by the Hermiston Fire and Emergency Services.340 14 15 According to the ASC and correspondence between the applicant and the Hermiston Fire & 16 Emergency Services, Hermiston Fire & Emergency does not expect the project to have any 17 significant impact on the district’s ability to provide fire protection/emergency services. 18 Further, the applicant proposes to store fire equipment on-site at the station as well as a fire 19 protection system that would include a fire water system, a carbon dioxide extinguishing 20 system provided with the CTG’s, portable fire extinguishers, and a smoke detection system. 21 These measures would further alleviate any impact of the proposed facility on the fire service 22 providers in the area. In addition, assuming a peak workforce of 225 workers on site, the City of 23 Hermiston Police Department does not anticipate the additional potential calls for service to 24 pose a significant impact on the ability of the department to provide law enforcement 25 services.341 Based upon the police department’s ability to continue to respond with the addition 26 of 225 workers operation of the facility is not likely to impact their ability to provide services in 27 the area, considering there would only be 6-8 full time employees. Additionally, the applicant 28 proposes to mitigate impacts of operation of the facility on police service’s by fencing the 29 facility and including a monitored gated entrance; having a closed-circuit television camera and 30 security lighting on the site; as well as fencing the step-up substation. 31 32 To ensure the applicant implements the proposed mitigation measures to reduce potential 33 impacts to the fire and police service providers the Council adopts the following conditions: 34 35

337 ASC, Exhibit U, U-8. 338 ASC, Exhibit U, U-8. 339 ASC, Exhibit U, U-8. 340 ASC, Exhibit U, U-8. 341 ASC, Exhibit U, U-8.


Condition M.6: The site certificate holder shall fence the Station site and include a 1 monitored gated entrance, security lighting and a closed circuit television camera shall be 2 installed. 3

4 Condition M.7: Prior to beginning construction, the certificate holder shall develop and 5 implement a fire protection system, which shall include a fire water system, portable fire 6 extinguishers, a smoke detection system and a carbon dioxide extinguishing system 7 provided with the combustion turbine generators (CTG). 8

9 Condition M.8: Prior to beginning operation of the facility, the certificate holder shall 10 provide a site plan to the Hermiston Fire & Emergency Services District. The certificate 11 holder shall indicate the actual location of all facility structures on the site plan. During 12 operation, the certificate holder shall ensure that appropriate fire protection agency 13 personnel have an up-to-date list of the names and telephone numbers of facility personnel 14 available to respond on a 24-hour basis in case of an emergency on the facility site. 15

16 For these reasons, and subject to compliance with the site certificate conditions, the Council 17 finds that development of the facility would not increase demand for fire or police protection 18 such that fire and police protection services to the community would be impacted. 19 20

E. Health Care 21 22

As explained in the ASC, the nearest full service health care center to the Project site is the 23 Good Shepherd Medical Center, located approximately 5 miles from the project. This facility 24 provides Trauma Level III services and includes 25-bed hospital and an emergency room that is 25 open 24 hours a day.342 Additionally, Saint Anthony’s Hospital in Pendleton provides Trauma 26 Level IV service. The ASC explains that the Hermiston Fire and Rescue District operates five 27 ambulances to provide emergency medical transportation. Fire-med, a commercial provider, is 28 also available in the area.343Life Flight network also provides air medical evaluation services 29 from multiple bases in eastern Oregon, according to the ASC. As explained in the ASC, during 30 construction the applicant anticipates a maximum of 225 construction workers and eight full-31 time employees. Based upon the number of construction and full-time employees and the 32 number and proximity of available health care facilities in the region, including ambulance and 33 life flight services, there would not be an adverse impact on the ability of these provides to 34 deliver health services.344 35 36 For these reasons and subject to compliance with the site certificate conditions, the Council 37 finds that the construction and operation of the facility are not likely to have a significant 38 adverse impact on the ability of health care providers to deliver services. 39

342 ASC, Exhibit U, U-9. 343 ASC, exhibit U, U-9. 344 ASC, Exhibit U, U-15.


1 G. Schools 2

3 The applicant provided school enrollment and capacity data for each public school in the 4 analysis area in Table U-3 of the application. Based upon the enrollment summary and the 5 anticipated construction data, the applicant does not anticipate any adverse impact to the 6 school system. According to the ASC, the total estimated influx of workers renting or purchasing 7 permanent housing in the area during construction is 15, which would correspond to 8 approximately 30 children, assuming two children per household. However, as explained in the 9 ASC, the Hermiston and Umatilla School Districts, while currently experiencing growing 10 enrollment, have both confirmed that they could receive the total estimated influx within their 11 respective districts and the increase would not have an impact on their ability to provide 12 service.345 Further, the other schools within the analysis area have been experiencing either 13 stable enrollment or slight declines in enrollment, according the ASC.346 Based upon the ability 14 of the two growing school districts to absorb additional children without concerns regarding 15 capacity or service, the Council finds that the construction of the facility would not adversely 16 impact the schools within the analysis area. 17 18 During operation, as previously discussed, the applicant anticipates only six to eight full-time 19 employees at the facility. Assuming maximum impact of eight employees and two children per 20 household, operation of the facility would account for only an additional influx of 16 children to 21 the school system. The applicant does not anticipate that operation of the facility would impact 22 the schools and the Council agrees based upon the school systems’ ability to absorb the greater 23 potential impact during construction. Therefore, the Council finds that the operation of the 24 facility would not adversely impact the schools within the analysis area. 25 26

IV.M.2. Public Services: Conclusions of Law 27 28 Based on the foregoing findings and the evidence in the record, and subject to compliance with 29 the site certificate conditions, the Council finds that the facility complies with the Council’s 30 Public Services Standard. 31 32 IV.N. Waste Minimization [OAR 345-022-0120] 33

34 (1) Except for facilities described in sections (2) and (3), to issue a site certificate, the 35 Council must find that, to the extent reasonably practicable: 36

37 (a) The Applicant’s solid waste and wastewater plans are likely to minimize 38 generation of solid waste and wastewater in the construction and operation of the 39

345 ASC, Exhibit U, U-15. 346 ASC, Exhibit U, U-15.


facility, and when solid waste or wastewater is generated, to result in recycling and 1 reuse of such wastes; 2

3 (b) The Applicant’s plans to manage the accumulation, storage, disposal and 4 transportation of waste generated by the construction and operation of the facility 5 are likely to result in minimal adverse impact on surrounding and adjacent areas. 6

7 (2) The Council may issue a site certificate for a facility that would produce power from 8 wind, solar or geothermal energy without making the findings described in section (1). 9 However, the Council may apply the requirements of section (1) to impose conditions on 10 a site certificate issued for such a facility. 11 * * * 12 13

IV.N.1. Waste Minimization: Findings of Fact 14 15 The Waste Minimization Standard generally requires the Council to find that the certificate 16 holder will minimize the generation of solid waste and wastewater, and that the waste 17 generated will be managed to result in minimal adverse impacts on surrounding and adjacent 18 areas. Subsection (2) and (3), above, are not applicable to this application as the proposed 19 facility would not produce power from wind, solar or geothermal energy, and the facility is not 20 a special criteria facility as defined in OAR 345-015-0310. Therefore, only the criteria specified 21 in OAR 345-022-0120(1) apply to the proposed facility, and the Council must make findings 22 regarding the applicant’s compliance with paragraphs (1)(a) and (1)(b) of the Waste 23 Minimization standard. 24 25 The applicant provided information about waste minimization in Exhibits G and V of the ASC. 26 Exhibit G (Materials analysis) includes an inventory of the quantities of industrial materials that 27 would be used at the facility during construction and operation, the plans for management of 28 hazardous and non-hazardous substances during construction and operation, and the measures 29 that the applicant proposes to take to prevent and contain spills. Exhibit V (waste minimization) 30 includes the applicant’s plans for management of solid waste, wastewater, and stormwater 31 during construction and operation of the proposed facility. As proposed, the applicant’s 32 preferred option is to route waste water to Hermiston Generating Plant for reuse in the cooling 33 towers; however, the ability of the applicant to utilize this option is dependent upon the ability 34 of Lamb Weston to accept reclaimed water from the Hermiston Generating Plant that has come 35 from the proposed facility.347 As explained in the ASC, Lamb Weston’s Water Pollution Control 36 Facilities permit allows Lamb Weston to manage and utilize Hermiston Generating Plant’s 37 reclaimed water, along with its own reclaimed waters, by land application for beneficial use on 38 the North Farm and Madison Farm in accordance with its plan approved by the Oregon 39 Department of Environmental Quality.348 However, Lamb Weston has not been able to consent 40

347 ASC, Exhibit V, V-1. 348 ASC, Exhibit V, V-1.


to the project potentially sending reclaimed water to the HGP because the permit is under 1 review by DEQ for renewal. Therefore, should Lamb Weston not be able to accept reclaimed 2 water from the HGP that has come from the station, the applicant proposes to install a zero 3 liquid discharge system.349 Accordingly, management of waste using a ZLD system was analyzed 4 in the application and addressed below. 5 6

A. Solid Waste 7 8 Overall, the applicant proposes to minimize the generation of solid waste during construction 9 and operation of the facility through implementation of a waste management plan, detailed 10 estimates of materials needed for construction and implementing efficient construction 11 practices.350 During construction, the applicant anticipates the project would produce about 2.5 12 tons per month of solid waste for approximately 18 months.351 Solid waste would include 13 domestic refuse; office waste; packaging materials; steel cut-offs; and construction materials 14 (concrete waste, wood, plastic, glass, erosion control materials, and miscellaneous debris). 15 During operation, the applicant anticipates approximately 10 tons per year of solid waste, 16 which would consist of office and maintenance waste.352 In addition to the domestic solid 17 waste, additional solid waste may be generated from the Station’s water pretreatment system. 18 The primary source of the solid waste would be silt from the raw water supply; however, these 19 solids, if generated are not expected to be hazardous and would be included in the normal 20 maintenance waste.353 21 22 The applicant proposes to keep recyclable material separated from the solid waste stream to 23 deliver to a recycling facility, such as R.S. Davis Recycling of Hermiston, Oregon. During 24 construction, for solid waste that cannot be recycled, the applicant proposes to collect in roll-25 off bins and truck to an approved landfill. The closest landfill is the Finley Buttes Regional 26 Landfill, which is located approximately 14 miles southwest of the station and has capacity to 27 accept solid waste from the facility.354 If the applicant utilizes the ZLD system, there would be 28 no changes to the solid waste produced during construction.355 To ensure the applicant 29 implements waste minimization measures, the Council adopts the following condition: 30 31

Condition N.1: The certificate holder shall implement a waste management plan during 32 construction that includes but is not limited to the following measures: 33

34 (a) Recycling steel, other metal scrap; and paper and cardboard waste; 35

349 ASC, Exhibit V, V-2. 350 ASC, Exhibit V, V-1 and V-7. 351 ASC, Exhibit V, V-3. 352 ASC, Exhibit V, V-3.; 353 ASC, Exhibit V, V-3. 354 ASC, Exhibit V, V-6. 355 ASC, Exhibit V, Appendix V-1, pg. 1


(b) Recycling wood waste to the maximum extent possible; 1 (c) Collecting nonrecyclable waste for transport to a permitted solid waste disposal 2 facility by a licensed waste hauler; and 3 (d) Segregating all hazardous waste such as used oil, oily rags and oil-absorbent 4 materials, mercury-containing lights and lead-acid and nickel-cadmium batteries for 5 recycling or disposal by a licensed firm qualified in the proper recycling or disposal of 6 hazardous waste. 7 8

During operation, refuse would be collected in a roll-off bin and picked up weekly by a 9 contractor; ultimate disposal would take place in a solid waste landfill. As with construction, the 10 applicant proposes to separate out recyclable material and to deliver to a recycling facility.356 11 Further, the applicant proposes to implement a waste management procedure, which would 12 include a waste minimization plan. The waste management procedure would include program 13 goals, responsibilities, waste determinations, storage and handling requirements; recording 14 keeping requirements, training requirements and ongoing evaluations. 15 16 If the applicant utilizes the ZLD system, additional solid wastes would be produced during 17 operation. All process wastewater produced during facility operations would be reclaimed as 18 makeup water for the cooling tower to the maximum extent possible by the ZLD system. The 19 remaining wastewater would then be routed to a crystallizer and converted to a solid waste.357 20 At full load, 700 pounds of solids are anticipated to be generated per hour under annual 21 average conditions. As explained in the ASC, under annual average conditions, that would 22 amount to an annual average of 1,540 tons per year generated based on 4,400 hours per year 23 of operation. However, the solid waste is expected to be non-hazardous and would be 24 transported to a landfill with other facility waste.358 As stated in the ASC, this generation of 25 solid waste is not anticipated to impact the regional landfill.359 However, the Council adopts the 26 following condition to ensure the applicant implements a waste management plan during 27 operation: 28 29

Condition N.2: The site certificate holder shall implement a waste management plan during 30 operation that includes but is not limited to the following measures: 31 32

(a) Training employees to minimize and recycle solid waste; 33 (b) Recycling paper products, metals, glass, and plastics; 34 (c) Recycling used oil and hydraulic fluid; 35 (d) Collecting nonrecyclable waste for transport to a permitted solid waste disposal 36 facility by a licensed waste hauler; and 37

356 ASC, Exhibit V, V-7. 357 ASC, Exhibit V, Appendix V-1, pg. 1 358 ASC, Exhibit V, Appendix V-1, pg. 2. 359 ASC, Exhibit V, Appendix V-1, pg. 6.


(e) Segregating all hazardous waste such as used oil, oily rags and oil absorbent 1 materials, mercury‐containing lights and lead‐acid and nickel‐cadmium batteries for 2 recycling or disposal by a licensed firm qualified in the proper recycling or disposal of 3 hazardous waste. 4

5 Based on the above information, and subject to compliance with the site certificate conditions, 6 the Council finds that the applicant can minimize the production of solid waste during 7 construction and operation of the facility. 8 9

B. Waste Water and Storm water 10 11 During construction of the facility, the applicant anticipates wastewater to result from sanitary 12 waste, stormwater, testing and commissioning of water supply systems, hydrostatic testing, 13 flushing of the water supply pipelines, washing equipment and vehicles and washing concrete 14 trucks after delivery of concrete loads. Portable toilets would be used during construction of 15 the project and sanitary sewage would be managed and transported to a licensed sewage 16 treatment plant.360 As explained in the ASC, wastewater generated during washing equipment 17 and vehicles, and washing concrete trucks after delivery of concrete loads would be treated 18 with an oil/water separator and routed to the stormwater detention basin.361 Wastewater 19 generated during testing and commissioning of the water supply systems, hydrostatic testing 20 and flushing of the water lines would be tested to determine the concentrations of the 21 constituents present and then would either be trucked offsite for processing and disposal by 22 CCS or routed to the Hermiston Generating Plant to supplement its cooling tower makeup 23 water demand.362 Further, the applicant proposes to manage stormwater and other surface 24 water discharges in conformance with the NPDES 1200-C. Condition D.1 would require the 25 certificate holder to conduct all construction work in compliance with an Erosion and Sediment 26 Control Plan satisfactory to the Oregon Department of Environmental Quality, as required 27 under the NPDES 1200-C permit. Should the applicant be required to utilize a ZLD system, there 28 would be no changes to the wastewater produced during construction.363 The Council adopts 29 the following condition regarding wastewater during construction to ensure the proper 30 handling: 31 32

Condition N.3: The certificate holder shall provide portable toilets for on-site sewage 33 handling during construction and shall ensure that they are pumped and cleaned regularly 34 by a licensed contractor who is qualified to pump and clean portable toilet facilities. 35

36 During operations, the applicant proposes that the Station would produces wastewater from 37 sanitary sewage, cooling tower blowdown, demineralized water production wastes, combustion 38

360 ASC, Exhibit V, V-8. 361 ASC, Exhibit V, V-8. 362 ASC, Exhibit V, V-8. 363 ASC, Exhibit V, Appendix V-1, pg. 3.


turbine water wash wastes, plant and equipment drain wastes, service water, evaporative 1 cooling, multimedia filtration backwash and stormwater.364 Because the Station is scheduled to 2 operate at varying load conditions, at any time the quantities of wastewater could range from 3 zero to 100%.365 Table T-1 of the ASC, provides the applicant’s anticipated wastewater volumes, 4 per source of wastewater. 5 6 To dispose of operational wastewater, the applicant anticipates routing cooling tower 7 blowdown, as well as all other suitable wastewater streams, to HGP for reuse as makeup water 8 for the cooling towers.366 As explained in the ASC, the cooling tower blowdown from the 9 Station would be a higher grade of wastewater in terms of the total dissolved solids because 10 the intercooler system has a low tolerance for solids build-up; therefore, the applicant proposes 11 to reclaim the cooling tower blowdown along with other wastewater streams and route it to 12 the HGP. Reclaiming the wastewater and routing to HGP would enable reuse of wastewater and 13 would decrease the need for cooling tower chemicals and makeup water at the HGP. Should 14 the applicant be required to utilize a ZLD system, no additional wastewater is anticipated 15 because process wastewater produced during facility operations would be reclaimed as 16 makeup water for the cooling tower to the maximum extent possible with the remaining waste 17 water routed to a crystallizer and converted to solid waste.367 18 19 The ASC explains that periodically, to maintain the combustion turbine generator, the 20 compressor must be water-washed and the process sumps and oil/water separator cleaned 21 out. The wash water would be tested to determine constituent concentrations and trucked 22 offsite for processing and disposal. As stated in the ASC, the wastewater from cleaning process 23 sumps and the oil/water separator would be deemed nonhazardous, and, normally, the 24 wastewater from water washing the compressor would also be deemed to be nonhazardous. 25 As proposed by the applicant, non-hazardous wastewater would be transported offsite for 26 treatment and disposal by a contractor;368 however, wastewater determined to be hazardous 27 would be transported by a contractor to the Chemical Waste Management facility in Arlington, 28 Oregon.369 29 30 Stormwater amounts would be determined by the region’s weather. The applicant proposes to 31 collect stormwater from building roofs and other impervious surfaces in a stormwater 32 detention basin and allow it to evaporate and percolate.370 Any potentially contaminated 33 stormwater would first pass through an oil/water separator before being routed to the basin. 34 As explained in the ASC, the basin would be designed for a 100-year return period 24-storm 35

364 ASC, Exhibit V, V-4. 365 ASC, Exhibit V, V-4. 366 ASC, Exhibit V, V-7. 367 ASC, Exhibit V, Appendix V-1, pg. 1. 368 ASC, Exhibit V, V-6. 369 ASC, Exhibit V, V-6. 370 ASC, Exhibit V, V-6.


event plus another 50 percent capacity. A 100-year return period 24-hour storm event is 1 expected to generate 2.25 inches of precipitation or about 132,780 cubic feet of stormwater; 2 the basin is expected to be sized for about 199,163 cubic feet of stormwater.371 The applicant 3 proposes to construct a new sanitary septic leach field onsite for the six to eight full-time 4 employees at the station. As explained in the ASC, the DEQ would regulate the sanitary sewage 5 system.372 6 7 Based on the foregoing, and subject to compliance with the site certificate conditions, the 8 Council finds that the applicant’s plans for wastewater management are likely to minimize 9 generation of wastewater during construction and operation of the facility. 10 11

C. Hazardous Waste 12 13 Potentially hazardous waste could include oil rags, spent batteries, and equipment 14 maintenance solvents, paints and oils. However, as explained in the ASC, the applicant expects 15 to generate hazardous waste at a rate that is less than 220 pounds per month, which would 16 qualify the facility as a Conditionally Exempt Small Quantity Generator of hazardous waste, per 17 Title 40 CFR § 261.5. Further, the applicant proposes to store less than 2,200 pounds of 18 hazardous waste at a time.373 Nonetheless, the applicant proposes to develop a hazardous 19 materials management plan and to store the materials in sealable drums in a secure onsite 20 location.374 The applicant further proposes to develop both a construction and operational Spill 21 Prevention Control and Countermeasures (SPCC) Plan.375 Condition D.6, above, requires the 22 certificate holder to implement a Hazardous Materials Management and Monitoring Plan. In 23 addition, Condition D.7 requires the certificate holder to develop and implement a SPCC plan. 24 However, the Council also adopts the following conditions to ensure hazardous wastes 25 generated are properly collected and stored: 26 27

Condition N.4: The certificate holder shall use hazardous materials in a manner that 28 protects public health, safety and the environment and shall comply with all applicable 29 local, state, and federal environmental laws and regulations. 30

31 Condition N.5: The certificate holder shall collect all hazardous solid waste, including oily 32 waste, used filters, and oily rags or absorbents in sealable drums. The certificate holder shall 33 collect used oils, solvents, and cleaning materials in tanks or barrels supplied by material 34 vendors. 35 36

371 ASC, Exhibit V, V-12. 372 ASC, Exhibit V, V-15. 373 ASC, Exhibit V, V-3. 374 ASC, Exhibit V, V-3. 375 ASC, Exhibit V, V-7.


Condition N.6: The certificate holder shall store hazardous chemicals in aboveground 1 containers or tanks located within secondary containment areas. Other chemicals and 2 lubricants needed for facility maintenance and operation shall be stored in the facility 3 buildings. 4

5 Should the applicant be required to install a ZLD system, there would be no impact on the 6 production of hazardous waste as the waste produced is anticipated to be non-hazardous solid 7 waste and disposed of at a landfill.376 8 9 Based on the foregoing, and subject to compliance with the site certificate conditions, the 10 Council finds that the applicant’s plans for handling hazardous wastes are likely to minimize 11 impacts of hazardous wastes during construction and operation of the facility. 12 13

IV.N.2. Waste Minimization: Conclusions of Law 14 15 Based on the foregoing findings and the evidence in the record, and subject to compliance with 16 the site certificate conditions, the Council finds that the facility complies with the Council’s 17 Waste Minimization Standard. 18 19 IV.O. Siting Standards for Transmission Lines [OAR 345-024-0090] 20 21 To issue a site certificate for a facility that includes any transmission line under Council 22 jurisdiction, the Council must find that the Applicant: 23

24 (1) Can design, construct and operate the proposed transmission line so that alternating 25 current electric fields do not exceed 9 kV per meter at one meter above the ground 26 surface in areas accessible to the public; 27 28 (2) Can design, construct and operate the proposed transmission line so that induced 29 currents resulting from the transmission line and related or supporting facilities will be 30 as low as reasonably achievable. 31 32

IV.O.1. Siting Standards for Transmission Lines: Finding of Fact 33 34 OAR 345-024-0090 addresses safety hazards associated with electric fields around transmission 35 lines.377 OAR 345-024-0090(1) sets a limit for electric fields from transmission lines in areas that 36 are accessible to the public; and OAR 345-024-0090(2) requires measures to reduce the risk of 37 induced current. The applicant provided evidence about electric transmission lines proposed as 38 part of the facility in Exhibit AA. As explained in that Exhibit, the applicant is proposing to 39 reconductor an existing line. Currently, the double-circuit steel monopoles support a 230-40

376 ASC, Exhibit V, Appendix V-1, pg. 6. 377 Magnetic field effects are addressed in Section IV.U, Public Health and Safety.


kilovot transmission line and a 115-kV transmission line. The development of the station, as 1 explained in the ASC, would require restringing the 115-kV side of the transmission line to 230-2 kV. 3 4

A. Electric Fields 5 6

As explained in the ASC, the applicant performed an analysis to determine the electrical effects 7 of replacing the present 115-kV to 230-kV transmission line on the double circuit transmission 8 infrastructure. The applicant calculated the electric fields, magnetic fields, audible noise, and 9 radio interference strengths within 200 feet of the right of way center line, with an emphasis on 10 the minimum ROW width of 25 feet.378As the ASC explains, electric field strength is dependent 11 upon voltage; therefore, as the proposed transmission line would increase the present voltage 12 on the system, the applicant anticipates an increase in the electric field strength.379 The 13 applicant examined EMF impacts with respect to the narrowest width identified from the ROW, 14 which is approximately 25 feet. The maximum EMF effects were calculated from the center line 15 of the ROW to approximately 200 feet to determine the field strengths for all occupied 16 structures near the transmission line. The maximum electric field strength at 1 meter above 17 ground was calculated to be located approximately 20 feet from the ROW center line, with a 18 magnitude of 1.34 kilovolts per meter. Further, the electric field strengths at the minimum 19 ROW width of 25 feet were calculated to be 1.31 kilovolts per meter.380As demonstrated in 20 Table AA-1, all structures found within and near to the right of way boundaries were found to 21 experience electrical effects well below the EMF standards outlined in OAR 345-024-0090. 22 Therefore, based upon these calculations, the expected maximum calculated electric fields falls 23 well below the 9-kilovolt per meter maximum established in OAR 345-024-0090(1). 24 25 Based on the review of Exhibit AA, the Council finds that the applicant can design, construct, 26 and operate the proposed transmission line so that alternating current fields to not exceed 9.0 27 kilovolts per meter at one meter above ground surface in areas accessible to the public. 28 29

B. Induced Current 30 31

As the Council has previously determined, the magnetic and electric fields around alternating 32 current transmission lines can induce current or voltage in nearby objects. Induced currents are 33 not hazardous to people but can be a concern for railroad communications and pipeline 34 cathodic protections systems that parallel transmission lines.381As explained in the ASC, the 35 proposed conductor design for the reconductored transmission line would utilize a two-36 conductor bundle design and arrange each phase conductor such that the greatest feasible 37

378 ASC, Exhibit AA, A-4. 379 ASC, Exhibit AA, A-4. 380 ASC, Exhibit AA, A-4. 381 Final Order on the Montague Wind Power Facility (September 2010), p. 87.


maximum reduction and cancelation of field strengths is achieved.382 Under OAR 345-027-0023, 1 the Council may adopt certain site specific conditions. Two of these conditions implement the 2 requirements in the Siting Standards for Transmission Lines that relate to reducing possible 3 impacts to human or animal contact with induced currents. To ensure compliance with this 4 standard, the applicant must comply with the following site specific condition as required 5 pursuant to OAR 345-027-0023(4)(a) and (b): 6 7

Condition O.1 [OAR 345-027-0023(4)]: 8 9

(a) The certificate holder shall design, construct and operate the transmission line in 10 accordance with the requirements of the National Electrical Safety Code (American 11 National Standards Institute, Section C2, 1997 Edition); and 12 (b) The certificate holder shall develop and implement a program that provides 13 reasonable assurance that all fences, gates, cattle guards, trailers, or other objects or 14 structures of a permanent nature that could become inadvertently charged with 15 electricity are grounded or bonded throughout the life of the line.383 16

17 Based on the evidence in the record, and subject to compliance with the site certificate 18 conditions, the Council finds that the applicant can design, construct and operate the proposed 19 transmission line so that induced currents from the transmission line and related and 20 supporting facilities will be as low as reasonably achievable. 21 22

IV.O.2. Siting Standards for Transmission Lines: Conclusions of Law 23 24 Based on the foregoing findings and the evidence in the record, and subject to compliance with 25 the site certificate conditions, the Council finds that the facility complies with the Council’s 26 Siting Standards for Transmission Lines. 27 28 IV.P. Noise Control Regulations [OAR 340-035-0035] 29 30

(1) Standards and Regulations: 31 * * * 32

382 ASC, Exhibit AA, AA-2.

383 The department received public testimony during the public hearing regarding the potential impacts of the reconductored transmission line on the operation of agricultural pivots. The testimony provided did not request any particular revisions to the DPO, reference any section of the application, nor cite any applicable Council standard. As explained above, based upon the information included in the application, the applicant can design and construct the proposed transmission line in compliance with the Council’s Siting Standards for Transmission Lines. Further, Condition O.1, above, requires the certificate holder to develop and construct the line in accordance with the National Electrical Safety Code and to implement a program that provides reasonable assurances that all objects or structures of a permanent nature that could become inadvertently charged with electricity be grounded and bonded throughout the life of the line. Based upon the evidence in the application, the Council does not make any change or require any additional conditions. PERAPPDoc33.


(b) New Noise Sources: 1 * * * 2

(B) New Sources Located on Previously Unused Site: 3 4 (i) No person owning or controlling a new industrial or commercial noise 5 source located on a previously unused industrial or commercial site shall 6 cause or permit the operation of that noise source if the noise levels 7 generated or indirectly caused by that noise source increase the ambient 8 statistical noise levels, L10 or L50, by more than 10 dBA in any one hour, or 9 exceed the levels specified in Table 8, as measured at an appropriate 10 measurement point, as specified in subsection (3)(b) of this rule, except as 11 specified in subparagraph (1)(b)(B)(iii). 12 13 (ii) The ambient statistical noise level of a new industrial or commercial noise 14 source on a previously unused industrial or commercial site shall include all 15 noises generated or indirectly caused by or attributable to that source 16 including all of its related activities. Sources exempted from the requirements 17 of section (1) of this rule, which are identified in subsections (5)(b) - (f), (j), 18 and (k) of this rule, shall not be excluded from this ambient measurement. 19 20 (iii) For noise levels generated or caused by a wind energy facility: 21

22 (I) The increase in ambient statistical noise levels is based on an assumed 23 background L50 ambient noise level of 26 dBA or the actual ambient 24 background level. The person owning the wind energy facility may 25 conduct measurements to determine the actual ambient L10 and L50 26 background level. 27 28 (II) The "actual ambient background level" is the measured noise level at 29 the appropriate measurement point as specified in subsection (3)(b) of 30 this rule using generally accepted noise engineering measurement 31 practices. Background noise measurements shall be obtained at the 32 appropriate measurement point, synchronized with windspeed 33 measurements of hub height conditions at the nearest wind turbine 34 location. "Actual ambient background level" does not include noise 35 generated or caused by the wind energy facility. 36 37 (III) The noise levels from a wind energy facility may increase the ambient 38 statistical noise levels L10 and L50 by more than 10 dBA (but not above 39 the limits specified in Table 8), if the person who owns the noise sensitive 40 property executes a legally effective easement or real covenant that 41 benefits the property on which the wind energy facility is located. The 42


easement or covenant must authorize the wind energy facility to increase 1 the ambient statistical noise levels, L10 or L50 on the sensitive property by 2 more than 10 dBA at the appropriate measurement point. 3 4 (IV) For purposes of determining whether a proposed wind energy facility 5 would satisfy the ambient noise standard where a landowner has not 6 waived the standard, noise levels at the appropriate measurement point 7 are predicted assuming that all of the proposed wind facility's turbines 8 are operating between cut-in speed and the wind speed corresponding to 9 the maximum sound power level established by IEC 61400-11 (version 10 2002-12). These predictions must be compared to the highest of either the 11 assumed ambient noise level of 26 dBA or to the actual ambient 12 background L10 and L50 noise level, if measured. The facility complies 13 with the noise ambient background standard if this comparison shows 14 that the increase in noise is not more than 10 dBA over this entire range 15 of wind speeds. 16 17 (V) For purposes of determining whether an operating wind energy facility 18 complies with the ambient noise standard where a landowner has not 19 waived the standard, noise levels at the appropriate measurement point 20 are measured when the facility's nearest wind turbine is operating over 21 the entire range of wind speeds between cut-in speed and the windspeed 22 corresponding to the maximum sound power level and no turbine that 23 could contribute to the noise level is disabled. The facility complies with 24 the noise ambient background standard if the increase in noise over 25 either the assumed ambient noise level of 26 dBA or to the actual ambient 26 background L10 and L50 noise level, if measured, is not more than 10 dBA 27 over this entire range of wind speeds. 28 29 (VI) For purposes of determining whether a proposed wind energy facility 30 would satisfy the Table 8 standards, noise levels at the appropriate 31 measurement point are predicted by using the turbine's maximum sound 32 power level following procedures established by IEC 61400-11 (version 33 2002-12), and assuming that all of the proposed wind facility's turbines 34 are operating at the maximum sound power level. 35 36 (VII) For purposes of determining whether an operating wind energy 37 facility satisfies the Table 8 standards, noise generated by the energy 38 facility is measured at the appropriate measurement point when the 39 facility's nearest wind turbine is operating at the windspeed 40 corresponding to the maximum sound power level and no turbine that 41


could contribute to the noise level is disabled. 1 * * * 2

3 IV.P.1. Noise Control Regulations: Findings of Fact 4

5 The applicant provided information about noise generated by construction and operation of the 6 proposed facility in Exhibit X. The proposed facility is a “new industrial or commercial noise 7 source” under OAR 340-035-0035(1)(b) because construction of the facility would begin after 8 January 1, 1975.384 OAR 345-035-0035(1)(b) applies different standards to new noise sources 9 based on the previous use of industrial sites. A site is defined as a “previously unused industrial 10 or commercial site” and subject to the standards in OAR 340-035-0035(1)(b) if the site has not 11 been in an industrial or commercial use at any time during the 20 years preceding the 12 construction of a new noise source on site. Otherwise, the standards of OAR 340-035-13 0035(1)(b)(A) apply to a “previously used” site. The energy facility site and step-up substation 14 site qualify as “previously unused” sites and, therefore, the are subject to OAR 340-035-15 0035(1)(b)(B). However, because the related transmission line is a proposed reconductoring of 16 an existing line and the right-of-way currently contains a 230/115 kV transmission 17 infrastructure, it would be considered a previously used industrial or commercial site and 18 subject to OAR 340-035-0035(1)(b)(A) 19 20 Maximum Allowable Noise Levels 21 22 OAR 340-035-0035(5)(g) specifically exempts noise caused by construction activities from noise 23 control regulations in OAR Chapter 340. Therefore, the maximum allowable noise level is 24 evaluated based only on operation of the proposed facility.385 25 26 Under OAR 340-035-0035(1)(b), new sources on previously unused sites shall not increase 27 ambient statistical noise levels, L10 or L50, by more than 10 dBA in any single hour or exceed the 28 levels specified in Table 8 of OAR 340-035-0035. Table 8 of the regulation is provided below for 29 reference. Regarding, the transmission line, facility generated noise must not exceed the noise 30 limits specified in Table 8 of the regulation. As explained in the ASC, the facility would operate 31 on a 24-hour basis so the noise generated by the facility must not exceed the more restrictive 32 maximum permissible hourly statistical noise level for the nighttime hours. Therefore, to 33 comply with the maximum allowable noise level under the regulation, the noise radiating from 34 or attributable to operation of the proposed facility must not exceed a maximum hourly L50 35 noise level of 50 dBA at any noise sensitive receptor. 36 37

384 OAR 340-035-0015(33) defines a “new industrial or commercial noise source” as any industrial or

commercial noise source for which installation or construction was commended after January 01, 1975 on a site not previously occupied by the industrial or commercial noise source in question.

385 It should be noted that the applicant did provide information regarding construction noise levels for informational purposes within the application. See Section X.3.2 for additional details.


Table P-1 Standards for New Industrial and Commercial Noise Sources

Statistical Descriptor Daytime

(7 a.m. – 10 p.m.)(dBA) Nighttime

(10 p.m. – 7 a.m.)(dBA)

L50 55 50 L10 60 55 L1 75 60

Source: OAR 340-0035, Table 8. Available at: http://arcweb.sos.state.or.us/pages/rules/oars_300/oar_340/340_035.html

1 Under the DEQ regulations, compliance with the noise standards must be measured pursuant 2 to OAR 340-035-0035(3) on “noise sensitive property.” The regulations define “noise sensitive 3 property” as “real property normally used for sleeping, or normally used as schools, churches, 4 hospitals or public libraries. Property used for industrial or agricultural activities is not noise 5 sensitive property unless it meets the above criteria in more than an incidental manner.”386 The 6 “appropriate measurement point,” as defined by OAR 340-035-0035(3)(b), is “25 feet toward 7 the noise source from that point on the noise sensitive building nearest the noise source” or 8 “that point on the noise sensitive property line nearest the noise source,” whichever is farther 9 from the source. 10 11 As explained in the ASC, to evaluate the noise levels resulting from operation of the project and 12 to determine compliance with standard, the applicant first characterized existing background 13 noise levels. The applicant conducted a noise survey on June 27-29, 2013, at the following 14 locations: 15 16

1) the two noise sensitive properties located nearest the station (LT-1 is located 17 approximately 2,970 feet to the southeast of the center point between power block 2 and 18 power block 3 and LT-2 is located approximately 3,300 feet to the northeast of the center 19 point between power block 2 and power block 3);387 20

2) the noise- sensitive property located nearest the step-up substation (LT-3 is located 21 approximately 958 feet to east);388 and 22

3) three residential locations along the transmission line. 389 23 24 Table P-2, below, presents the lowest ambient hourly average L50 for each of the applicant 25 surveyed areas. 26 27 28

386 OAR 340-035-0015(38). 387 ASC, Exhibit X, X-3. 388 ASC, Exhibit X, X-3. 389 ASC, Exhibit X, X-3.

http://arcweb.sos.state.or.us/pages/rules/oars_300/oar_340/340_035.html


Table P-2 Lowest Measured Ambient Hourly Average L50

Property Location Lowest

Ambient Hourly Average L50

77935 Cottonwood Bend Road – LT-1 39.3

78401 Cottonwood Bend Road – LT-2 40.1

30221 Scapelhorn Road – LT-3 39.8

Residences along the transmission line 38.7

1 The applicant then modeled major project related noise sources using the CadnaA model 2 version 4.3.143.390 As explained in the ASC, all equipment sound power levels entered into the 3 model were determined by using vendor data for a similar project.391 According to the 4 applicant, the modeling was conservative because it predicted that the energy facility would 5 operate with all power blocks under full load conditions, thereby producing worst-case noise 6 levels.392 7 8 The applicant’s model estimated that operation of the station would contribute 47.1 dBA to the 9 existing ambient noise levels at LT-1 and 44.5 dBA at LT-2. Combining the sound level estimated 10 for the Station with the lowest measured background L50 for each property would result in an 11 increase of about 8.5 dBA and 5.7 dBA respectively. Therefore, as stated the in ASC, operation 12 of the energy facility would comply with OAR 340-035-0035(1)(b)(B).393 Further, as explained in 13 the ASC, operation of the step-up substation and transmission line would also comply with all 14 applicable requirements contained in OAR 340-035-0035.394 The model predicted noise level at 15 the noise-sensitive property nearest the step-up substation, LT-3, would be 38.3 dBA. 16 Combining this level with the lowest hourly L50 measured would produce a total noise level of 17 42.1 dBA, which would be an increase of 2.3 dBA and, thus, in compliance with the standard.395 18 19 For the transmission line, the audible noise strengths were calculated within 200 feet of the 20 ROW centerline at 6.6 feet above ground level. The resulting ROW boundary audible noise 21 strength was 39.3 dBA, during wet weather conditions, including rain and fog, which result in 22 the highest corona noise levels for high voltage alternating current lines. Therefore, based on 23 the calculated audible noise strength, the operation of the transmission line would comply with 24 the limits established in Table 8 under OAR 340-035-0035(1)(b)(A).396 25 26

390 ASC, Exhibit X, X-12. 391 ASC, Exhibit X, X-12. 392 ASC, Exhibit X, X-12. 393 ASC, Exhibit X, X-11. 394 ASC, Exhibit X, X-2. 395 ASC, Exhibit X, X-11. 396 ASC, Exhibit X, X-12.


Because the applicant used vendor data from a similar project to determine sound power levels 1 for the equipment, to ensure compliance with the maximum allowable noise levels during 2 operation of the facility, the Council adopts the following conditions: 3 4

Condition P.1: Prior to beginning construction of the facility, the certificate holder shall re-5 run the noise model using the noise characteristics of the equipment that has been selected 6 to ensure compliance with the noise regulations. 7 8 Condition P.2: Upon written notification from the department, the certificate holder shall 9 monitor and record the actual statistical noise levels during operations to verify that the 10 certificate holder is operating the facility in compliance with the noise control regulations. 11 The monitoring plan must be reviewed and approved by the department prior to 12 implementation. The cost of such monitoring, if required, will be borne by the certificate 13 holder. 14 15 Condition P.3: During operation, the certificate holder shall maintain a complaint response 16 system to address noise complaints. The certificate holder shall notify the department 17 within 15 days of receiving a complaint about noise from the facility. The notification should 18 include the date the complaint was received, the nature of the complaint, the complainant’s 19 contact information, the location of the affected property, and any actions taken, or 20 planned to be taken, by the certificate holder to address the complaint. 21 22 Condition P.4: To reduce construction noise impacts at nearby residences, the certificate 23 holder shall: 24

25 (a) Confine the noisiest operation of heavy construction equipment to the daylight 26 hours, to the extent practicable; 27 (b) Require contractors to install and maintain exhaust mufflers on all combustion 28 engine-powered equipment; and 29 (c) Establish a complaint response system at the construction manager’s office to 30 address noise complaints. Records of noise complaints during construction must be 31 made available to authorized representatives of the Department of Energy upon 32 request. 33 34

Based on the evidence in the record, and subject to compliance with the site certificate 35 conditions, the Council finds that the facility would comply with the noise control regulations 36 for a new industrial or commercial noise source on a previously unused and used industrial or 37 commercial site. 397 38

397 In written comments submitted by the Umatilla County Board of County Commissioners, the County

requested that the Council clarify how the state would enforce compliance with the noise regulations. Tamra Mabbott, Umatilla County Planning Director, provided oral testimony on behalf of the County during the public hearing on May 14, 2015 and stated that the department had done a sufficient job addressing how


IV.P.2. Noise Control Regulations: Conclusions of Law 1 2 Based on the foregoing findings and the evidence in the record, and subject to compliance with 3 the site certificate condition, the Council finds that the facility complies with the Noise Control 4 Regulations in OAR 340-035-0035(1)(b)(A) and (B). 5 6 IV.Q. Removal-Fill 7 8 The Oregon Removal-Fill statutes (ORS 196.795 through 196.990) and regulations (OAR 141-9 085-0500 through 141-085-0785) adopted by the Oregon Department of State Lands (DSL) 10 require a permit if 50 cubic yards or more of material is removed, filled or altered within any 11 “waters of the state.”398 The Council must determine whether a permit is needed and whether 12 the applicant has demonstrated that the proposed facility is consistent with the protection, 13 conservation and best use of the water resources of this state, and, to the extent the proposed 14 facility is on state-owned lands, would not unreasonably interfere with the paramount policy of 15 this state to preserve the use of its waters for navigation, fishing and public recreation. 16 17 Federal law may require a Nationwide or Individual fill permit for the proposed facility if waters 18 of the United States are affected. The U.S. Army Corps of Engineers administers Section 404 of 19 the Clean Water Act, which regulates the discharge of fill into waters of the United States 20 (including wetlands), and Section 10 of the Rivers and Harbors Appropriation Act of 1899, which 21 regulates placement of fill in navigable waters. A single application form (a Joint Permit 22 Application Form) is used to apply for both the State and Federal permits. The lateral extent of 23 federal jurisdiction of waterbodies under Section 404 of the Clean Water Act is delineated by 24 the ordinary high water mark (OHWM). 25 26 The applicant provided information about wetlands and other waters of the state in Exhibit J of 27 the application. The analysis area for Exhibit j is the area within the site boundary 28 29

IV.Q.1. Removal-Fill: Findings of Fact 30 31

A. Delineation of Waters of the State 32 33

The applicant identified and described existing waters of this state based on desktop analysis 34 and field surveys conducted within the analysis area. For this project the OHWM of 35

enforcement would be handled. As explained in this section, based upon the information provided in the application, the proposed facility complies with the noise regulations. However, should the certificate holder exceed the requirements of the noise regulations during operation of the proposed facility, the certificate holder would be in violation of the site certificate and subject to Council enforcement pursuant to OAR 345, Division 29. PERAPPDoc31.

398 ORS 196.800(14) defines “Waters of this state.” The term includes wetland and certain other water bodies.


waterbodies within the analysis area was determined using the guidelines provided in A Field 1 Guide to the Identification of the Ordinary High Water Mark in the Arid West Region of the 2 United States. To inform the field studies, the applicant reviewed the following literature prior 3 to conducting field surveys: United States Geological Survey 7.5 minute topographic maps; 4 National Wetland Inventory digital data; Soil Survey of Umatilla County; National Cooperative 5 Soil Survey’s web soil survey; National Hydrography Dataset digital data; Aerial imagery; and 6 precipitation data from National Oceanic and Atmospheric Administration. As described in the 7 ASC, the literature review identified no National Wetlands Inventory-mapped wetlands, no 8 hydric soils and no springs within the analysis area. However, through aerial imagery and 9 topographic maps, three potentially jurisdictional canals were identified.399 10 11 Following the literature review, the applicant conducted field surveys of the analysis area on 12 May 9 and August 1, 2013, following the methodologies described in 1987 U.S. Army Corps of 13 Engineers Wetland Delineation Manual and the Regional Supplement to the Corps of Engineers 14 Wetland Delineation Manual: Arid West Region.400 As identified via the literature review and 15 then confirmed through field surveys, there are no wetlands within the analysis area; however, 16 there are the three canals first identified via aerial imagery within the analysis area. Table Q-1, 17 below, identifies and describes each in more detail. 18 19

Table Q-1 Summary of Waters of the State within the Study Area

Waterbody ID/Name

Approximate Mile Post

Waterbody Type

Flow Type Crossing Method

Approximate Impact Acreage

SS-001-001 High Line Canal

1.9 Canal Intermittent Bore

under canal

0

SS-001-002 Westland A Canal

1.15 Canal Intermittent Bore

under canal

0

SS-001-003 Westland A Canal

0.00/Station and

Temporary Laydown

Area

Canal Intermittent Bridge over canal

0

20 As explained in the ASC and in Table Q-1, all three canals have intermittent flow and are 21 controlled by the local irrigation districts or local landowners. Based on applicant 22 correspondence with the Westland Irrigation District, all three canals are dewatered seasonally 23 and used only for irrigation.401 Further, based up on the applicant’s field observations, the 24 canals do not likely provide any spawning, rearing or food-producing areas for fish within the 25

399 ASC, Exhibit J, J-2. 400 ASC, Exhibit J, J-2. 401 ASC, Exhibit J, J-4.


analysis area.402 The applicant proposes that the project would not impact any of the three 1 canals because one waterbody would be crossed by a bridge and the other two would be 2 crossed by an underground bore or horizontal directional drill. Additionally, there would be no 3 removal-fill below the OHWM and no disturbance would occur above the OHWM or within the 4 associated riparian areas.403 5 6 The applicant’s determinations of potential State jurisdiction for delineated wetlands and other 7 waterbodies are preliminary until confirmed by the Oregon Department of State Lands (DSL). 8 The wetland delineation report performed by the applicant was submitted to DSL for review 9 and concurrence and was included in the ASC. DSL issued a letter of concurrence on July 17, 10 2014, which concurred that the waterways are all canals operated and maintained for the sole 11 purpose of irrigation, are dewatered during the non-irrigation season, and, are therefore not 12 subject to the permit requirements of the removal-fill law because they are exempt per OAR 13 141-085-0515(9).404 14 15

B. Removal-Fill Permit 16 17 As discussed above, there are no wetlands in the analysis area and the waterbodies within the 18 analysis are not jurisdictional. Therefore, a state removal-fill permit is not required.405 19 20

IV.Q.2. Removal-Fill: Conclusions of Law 21 22 Based on the foregoing findings and the evidence in the record, the Council finds that the 23 facility complies with the Removal-Fill law. 24 25 IV.R. Ground Water 26 27 Through the provisions of the Ground Water Act of 1955, ORS 537.505 to 537.795 and 537.992, 28 and OAR Chapter 690, the Oregon Water Resources Department (OWRD) administers water 29 rights for appropriation and use of the water resources of the state. Under OAR 345-022-30 0000(1)(b), the Council must determine whether the proposed facility would comply with these 31 statutes and administrative rules. The applicant provided information about the anticipated 32 water use for construction and operation of the proposed facility in Exhibit O of the application. 33 34

402 ASC, Exhibit J, J-4. 403 ASC, Exhibit J, J-4. 404 ASC, Exhibit J, SDL Concurrence Letter. OAR 141-085-0515(9) states that existing irrigation ditches are

not jurisdictional if they are operated and maintained for the primary purpose of conveying water for irrigation and are dewatered for the non-irrigation season for water incidentally retained in isolated low areas of the ditch or are used for stock water runs, provision of water for fire suppression, or to collect storm water runoff.

405 See letter from Heidi Hartman of DSL confirming no DSL removal fill permit required.


IV.R.1. Ground Water: Findings of Fact 1 2 The applicant anticipates that during construction, the project would use water for dust 3 abatement, washing equipment and vehicles, washing concrete trucks after delivery of 4 concrete loads, fire suppression during construction and water supply for testing and 5 commissioning. The applicant anticipates using approximately 2.3 million gallons of water 6 during the construction period.406 As explained in the ASC, all non-potable water for 7 construction activities would be obtained from the Port of Umatilla and the Port has provided a 8 letter stating that it has the capacity and permits to supply the quantities of water necessary for 9 construction.407 As reflected in its letter, the Port can supply up to 2,000 gallons per minute of 10 water to the station under a ‘subsequent user classification.’ The applicant proposes to obtain 11 potable water from a new onsite well or from a tie-in with the process water system. However, 12 according to the ASC, potable water demand would be less than 5,000 gallons per day, and, 13 therefore would not require a permit under ORS 537.545(f).408 Therefore, no permits are 14 needed, nor are any permits required to be transferred or modified to supply the construction 15 water needs of the station. 16 17 During operation, the applicant estimates that the major water uses would be cooling tower 18 makeup water and nitrogen oxide injection. Water would also be used for demineralized water 19 production, potable water, and service water.409 The applicant anticipates operational water 20 use, during worst case conditions (i.e. summer conditions), to be approximately 1,637 gallons 21 per minute.410 As explained in the ASC, the Port of Umatilla would be the source of all non-22 potable water required to meet the facility’s needs.411 The Port of Umatilla has submitted a 23 letter confirming it has the capacity and the permits to supply the facility with the necessary 24 water needs.412 25 26 In response to the DPO, the City of Hermiston and the Port of Umatilla (“the City”) submitted 27 comments as co-owners of the Port of Umatilla-City of Hermiston Regional Water System.413 28 The City explained that while it is true that the Port has the capacity within its water right to 29 serve the facility’s water needs, several substantial upgrades to the physical capacity of the 30

406 ASC, Exhibit O, O-2. 407 ASC, Exhibit O, O-2. 408 ASC, Exhibit O, O-2. 409 ASC, Exhibit O, O-2. 410 ASC, Exhibit O, O-4. Should the applicant not be able to send its reclaimed waters to the cooling tower

basin of the Hermiston Generating Plant to be reclaimed and recycled, the applicant has proposed to use a zero liquid discharge system. This system reclaims water to the maximum extent possible with a reverse osmosis system. However, use of this system would actually minimize the facility’s water use; therefore, worst case water use would be approximately 1,322 gallons per minute of water with the ZLD system in place. ASC, Exhibit O, O-7.

411 ASC, Exhibit O, O-3. 412 ASC, Exhibit O, O-3. 413 PERAPPDoc34.


water delivery system must be made in order to provide the facility with water. Therefore, the 1 City requested that a condition be imposed specifically making the applicant responsible for the 2 needed improvements. As discussed above under the Council’s Organizational Expertise 3 Standard, to issue a site certificate the Council must find that the applicant has, or has a 4 reasonable likelihood of entering into, a contractual or other arrangement with the third party 5 for access to the resource or service secured by that permit or approval. Based upon the Port’s 6 letter provided in the ASC, the department found that the applicant has a reasonable likelihood 7 of entering into a contractual agreement with the Port for access to water. In addition, 8 Condition B.7, above, requires the certificate holder to provide written confirmation to the 9 department that the third parties have obtained all necessary permits or approvals and proof of 10 agreements between the certificate holder and the third parties regarding access to the 11 resources or services secured by the permits or approvals. Nonetheless, in response to the 12 City’s comment on the DPO, the applicant proposed an additional condition, to specifically 13 require the applicant to enter into an agreement with the City that ensures completion of 14 water system improvements. While an agreement between the City and the applicant is 15 necessarily required under Condition B.7, and presumably that agreement would be amiable to 16 both parties, the Council adopts the following condition: 17 18 Condition R.1: The certificate holder shall enter into a contract with the owners of the 19

Regional Water System to ensure completion of system improvements needed in order to 20 provide water to the facility. 21

22 Potable water during operation would be obtained from a new water well located onsite or 23 obtained from a tie-in within the process water system. However, as with construction, potable 24 water demand is anticipated to be less than 5,000 gallons per day and, therefore, would not 25 require a permit.414 Potable water would be required for items such as ice machines, cooler and 26 sanitary facilities to support operating personnel. Based upon this information, no permits are 27 needed, nor are any permits required to be transferred or modified to supply the facility’s 28 operational water needs. 29 30 Based upon the above information, the Council finds that the facility complies with the 31 applicable rules and statutes related to appropriation of and use of water resources. The 32 Council, however, does adopt the following condition to ensure that the site certificate holder 33 obtains and uses water as represented and proposed in the ASC: 34 35

Condition R.2: During construction and operation of the facility, the certificate holder shall 36 limit use of water obtained from the Port of Umatilla to no more than 2,000 gallons per 37 minute and to amounts found to be within the scope of the water rights held by the Port. 38 39

414 ASC, Exhibit O, O-3.


IV.R.2. Ground Water Act: Conclusions of Law 1 2 Based on the foregoing findings and the evidence in the record, and subject to compliance with 3 the site certificate conditions, the Council finds that the facility complies with the Ground 4 Water Act of 1955. 5 6 IV.S. Carbon Dioxide Standard 7 8

OAR 345-024-0500 9 To issue a site certificate, the Council must find that the energy facility complies with any 10 applicable carbon dioxide emission standard adopted by the Council or enacted by statute. 11 The Council shall adopt standards for fossil-fueled power plants and may adopt carbon 12 dioxide standards for other energy facilities that emit carbon dioxide. 13 14 OAR 345-024-0590: Carbon Dioxide Standard for Non-Base Load Power Plant 15 To issue a site certificate for a non-base load power plant, the Council must find that the 16 Council must find that the net carbon dioxide emissions rate of the proposed facility does not 17 exceed 0.675 pounds of carbon dioxide per kilowatt-hour of net electric power output, with 18 carbon dioxide emissions and net electric power output measured on a new and clean basis. 19 For a base load gas plant designed with power augmentation technology as defined in OAR 20 345-001-0010, the Council shall apply this standard to the incremental carbon dioxide 21 emissions from the designed operation of the power augmentation technology. The Council 22 shall determine whether the carbon dioxide emissions standard is met as follows: 23 24

(1) The Council shall determine the gross carbon dioxide emissions that are reasonably 25 likely to result from the operation of the proposed energy facility. The Council shall base 26 such determination on the proposed design of the energy facility, the limitation on the 27 hours of generation for each fuel type and the average temperature, barometric 28 pressure and relative humidity at the site during the times of the year when the facility is 29 intended to operate. For a base load gas plant designed with power augmentation 30 technology, the Council shall base its determination of the incremental carbon dioxide 31 emissions on the proposed design of the facility, the proposed limitation on the hours of 32 generation using the power augmentation technology and the average temperature, 33 barometric pressure and relative humidity at the site during the times of the year when 34 the facility is intended to operate with power augmentation technology. The Council 35 shall adopt site certificate conditions to ensure that the predicted carbon dioxide 36 emissions are not exceeded on a new and clean basis; however, the Council may modify 37 the parameters of the new and clean basis to accommodate average conditions at the 38 times when the facility is intended to operate and technical limitations, including 39 operation considerations, of a non-base load power plant or power augmentation 40 technology or for other cause. 41


(2) For any remaining emissions reduction necessary to meet the applicable standard, 1 the applicant may elect to use any of the means described in OAR 345-024-0600 or any 2 combination therefor. The Council shall determine the amount of carbon dioxide or other 3 greenhouse gas emissions reduction that is reasonably likely to result from the 4 applicant’s offsets and whether the resulting net carbon dioxide emissions meet the 5 applicable carbon dioxide emissions standard. The amount of greenhouse gas emissions 6 means the pounds of carbon dioxide and the carbon dioxide equivalent of other 7 greenhouse gases. For methane, one pound of methane is equivalent to 25 pounds of 8 carbon dioxide. For nitrous oxide, one pound of nitrous oxide is equivalent to 298 pounds 9 of carbon dioxide. 10 (3) If the applicant elects to comply with the standard using the means described in OAR 11 345-024-0600(2), the Council shall determine the amount of greenhouse gas emissions 12 reduction that is reasonably likely to result from each of the proposed offsets. In making 13 this determination, the Council shall not allow credit for offsets that have already been 14 allocated or awarded credit for greenhouse gas emissions reduction in another 15 regulatory setting. The fact that an applicant or other parties involved with an offset 16 may derive benefits from the offset other than the reduction of greenhouse gas 17 emissions is not, by itself, a basis for withholding credit for an offset. The Council shall 18 base its determination of the amount of greenhouse gas emission reduction on the 19 following criteria and as provided in OAR 345-024-0680: 20

(a) The degree of certainty that the predicted quantity of greenhouse gas emissions 21 reduction will be achieved by the offset 22 (b) The ability of the Council to determine that actual quantity of greenhouse gas 23 emissions reduction resulting from the offset, taking into consideration any proposed 24 measurement, monitoring and evaluation of mitigation measure performance. 25 (c) The extent to which greenhouse gas emissions would occur in the absence of the 26 offsets 27

(4) Before beginning construction, the certificate holder shall notify the Department of 28 Energy in writing of its final selection of an equipment vendor and shall submit a written 29 design information report to the Department sufficient to verify the facility’s designed 30 new and clean heat rate and its nominal electric generating capacity at average annual 31 site conditions for each fuel type. For a base load gas plant designed with power 32 augmentation technology, the certificate holder shall include in the report information 33 sufficient to verify the facility’s designed new and clean heat rate, tested under 34 parameters the Council orders pursuant to section (1), and the nominal electric 35 generating capacity at average site conditions during the intended use for each fuel type 36 from the operation of the proposed facility using the power augmentation technology. 37 The certificate holder shall include the proposed limit on the annual average number of 38 hours for each fuel used, if applicable. The certificate holder shall include the proposed 39 total number of hours of operation for all fuels, subject to the limitation that the total 40 annual average number of hours of operation per year is not more than 6,600 hours. In 41 the site certificate, the Council may specify other information to be included in the 42


report. The Department shall use the information the certificate holder provides in the 1 report as the basis for calculating, according to the site certificate, the gross carbon 2 dioxide emissions from the facility and the amount of greenhouse gas emissions 3 reductions the certificate holder must provide under OAR 345-024-0600. 4 (5)(a) Every five years after commencing commercial operation, the certificate holder 5 shall report to the Council the facility’s actual gross carbon dioxide emissions. The 6 certificate holder shall calculate actual gross carbon dioxide emissions using the new and 7 clean heat rate and the actual hours of operation on each fuel during the five-year 8 period or shall report to the Council the actual measured or calculated carbon dioxide 9 emissions as reported to either the Oregon Department of Environmental Quality of the 10 U.S. Environmental Protection Agency pursuant to a mandatory carbon dioxide 11 emissions reporting requirement. 12

(b) The certificate holder shall specify its election of method used to measure or 13 calculate carbon dioxide emissions in the notification report described at section (4) 14 of this rule. That election, once made, shall apply for each five year period unless the 15 site certificate is amended to allow a different election. If the certificate holder 16 calculates actual carbon dioxide emissions using the new and clean heat rate and the 17 actual hours of operation, the certificate holder shall also report to the Council the 18 facility’s actual annual hours of operation by fuel type. If the actual gross carbon 19 dioxide emissions exceed the projected gross carbon dioxide emissions for the five-20 year period calculated under section (4), the certificate holder shall offset any excess 21 emissions for that period and shall offset estimated future excess carbon dioxide 22 emissions using the monetary path as described in OAR 345-024-0600(3) and (4) or 23 as approved by the Council 24

(6) For a base load gas plant designed with power augmentation technology, every five 25 years after commencing commercial operation, the certificate holder shall report to the 26 Council the facility’s actual hours of operation using the power augmentations 27 technology for the each fuel type. If the actual gross carbon dioxide emissions, calculated 28 using the new and clean heat rate, tested under parameters the Council orders pursuant 29 to section (1), and the actual hours of operation using the power augmentation 30 technology on each fuel during the five-year period exceed the projected gross carbon 31 dioxide emissions for the five-year period calculated under section (4), the certificate 32 holder shall offset any excess emissions for that period and shall offset estimated future 33 excess carbon dioxide emissions using the monetary path as described in OAR 345-024-34 0600(3) and (4) or as approved by Council 35

36 345-024-0600 Means of Compliance for Non-Base Load Gas Plants 37 The applicant may elect to use any of the following means, or any combination thereof, to 38

comply with the carbon dioxide emissions standard for non-base load power plants or for the 39 incremental carbon dioxide emissions from the operation of a base load gas plant with power 40 augmentation technology: 41 42


(1) Designing and operating the facility to produce electrical and thermal energy 1 sequentially from the same fuel source and using the thermal energy to displace another 2 source of carbon dioxide emissions from fossil fuels that would have otherwise continued 3 to occur. The Council shall adopt site certificate conditions ensuring that the carbon 4 dioxide emissions reduction will be achieved. 5 (2) Implementing offset projects directly or through a third party, pursuant to OAR 345-6 024-0680. The Council may adopt site certificate conditions ensuring that the proposed 7 offset projects are implemented by the date specified in the site certificate, but shall not 8 require that predicted levels of avoidance, displacement or sequestration of greenhouse 9 gas emissions be achieved. 10 (3) Providing offset funds, directly or through a third party, in an amount deemed 11 sufficient to produce the reduction in greenhouse gas emissions necessary to meet the 12 applicable carbon dioxide emissions standard. The applicant or third party shall use the 13 funds as specified in OAR 345-024-0710. The Council shall deem the payment of the 14 monetary offset rate, pursuant to OAR 345-024-0580, to result in a reduction of one ton 15 of carbon dioxide emissions. The Council shall determine the offset funds using the 16 monetary offset rate and the level of emissions reduction required to meet the 17 applicable standard. If the Council issues a site certificate based on this section, the 18 Council may not adjust the amount of the offset funds based on the actual performance 19 of offsets. 20 (4) Notwithstanding sections (1), (2) or (3), if the certificate holder exceeds the projected 21 gross carbon dioxide emissions calculated under OAR 345-024-0590(4) during any five-22 year reporting period described in OAR 345-024-0590(5) and (6), the certificate holder 23 shall offset excess emissions for the specific reporting period according to subsection (a) 24 and shall offset the estimated future excess emissions according to subsection (b). The 25 certificate holder shall offset excess emissions using the monetary path as described in 26 subsection (c) and OAR 345-024-0710 or as approved by the Council. 27

(a) In determining the excess carbon dioxide emissions that the certificate holder 28 must offset for a five-year period, the Council shall credit the certificate holder with 29 offsets equal to the difference between the carbon dioxide emissions allowed by the 30 site certificate in previous periods and actual emissions, if actual emissions were 31 lower than allowed. Once a certificate holder has used a credit, the certificate holder 32 shall not use it again. 33 (b) The Council shall specify in the site certificate a methodology for estimating 34 future excess carbon dioxide emissions. The Department of Energy shall calculate 35 estimated future excess emissions. To estimate excess emissions for the remaining 36 period of the deemed life of the facility, the Department shall use the annual average 37 number of hours of operation during the five-year period in which the certificate 38 holder exceeded the estimated gross carbon dioxide emissions described in OAR 345-39 024-0590(5) and the new and clean heat rate and capacity for the facility, adjusted 40 for the average temperature, barometric pressure and relative humidity at the site 41 during the times of the year when the facility is intended to operate. If the annual 42


average hours exceed 6,600, the Department shall estimate emissions at 100 percent 1 capacity for the remaining period of a deemed 30-year life of the facility. At the 2 request of the certificate holder, the Council may, by amendment of the site 3 certificate, use an alternative methodology to estimate future excess carbon dioxide 4 emissions. 5 (c) The certificate holder shall pay for the net excess carbon dioxide emissions 6 calculated pursuant to subsections (a) and (b) at the monetary path offset rate in 7 real dollars for the quarter and year in which the Council issued the final order that 8 applied the carbon dioxide standard. The Council shall specify in the site certificate 9 the methodology for calculating the real dollar value of the monetary offset rate. The 10 Department shall calculate the net excess carbon dioxide emissions and notify the 11 certificate holder of the amount of the monetary path payment required to offset 12 them. The certificate holder shall pay fully the required amount to the qualified 13 organization within 60 days of notification by the Department of the amount. The 14 certificate holder shall not be eligible for a refund of any monetary path payments 15 due to the calculations in this rule. 16

(5) Any other means that the Council adopts by rule for demonstrating compliance with 17 the carbon dioxide emissions standard. 18 (6) If the Council or a court on judicial review concludes that the applicant has not 19 demonstrated compliance with the applicable carbon dioxide emissions standard under 20 sections (1), (2) or (5) of this rule, or any combination thereof, and the applicant agrees 21 to meet the requirements of sections (3) and (4) for any deficiency, the Council or a court 22 shall find compliance based on such agreement. 23 24

OAR 345-024-0610 Modification of the Standard for Non-Base Load Power Plants 25 The council may by rule modify the carbon dioxide emissions standard for non-base load 26 power plants in OAR 345-024-0590 so that the standard remains equivalent to the standard 27 for the net carbon dioxide emissions rate of a base load gas plant, subject to the principles 28 described in OAR 345-024-0510. 29 30 OAR 345-024-0710 Monetary Path Payment Requirements 31 32

(1) If the applicant elects to meet the applicable carbon dioxide emissions standard in 33 whole or in part under OAR 345-024-0560(3), OAR 345-024-0600(3) or OAR 345-024-34 0630(2), (4) and (5), the applicant shall provide a bond or letter of credit in a form 35 reasonably acceptable to the Council to ensure the payment of the offset funds and the 36 additional funds required under section (4) of this rule. The applicant shall provide such 37 security by the date specified in the site certificate. In the site certificate, the Council 38 shall specify a date no later than the commencement of construction of the facility for 39 base load gas plants and non-base load power plants. For nongenerating facilities, the 40 Council shall specify a date no later than the commencement of construction of the 41 facility for providing the initial bond or letter of credit, and the Council shall specify 42


conditions for providing subsequent incremental payments to meeting the monetary 1 path payment requirement. The certificate holder for a nongenerating facility must meet 2 its incremental monetary path payment requirements before exhausting its offset credit 3 account, as described in OAR 345-024-0630(4). In no case shall the applicant diminish 4 the bond or letter of credit or receive a refund from a qualified organization based on the 5 calculations of the facility's emissions on a new and clean basis for a fossil-fueled power 6 plant or any other measure for a nongenerating energy facility. A qualified organization 7 shall not refund any offset funds to a certificate holder based on the operation or 8 performance of a non-base load power plant during any five-year period reported under 9 OAR 345-024-0590(5) or, for a nongenerating facility, on any offset credits the certificate 10 holder provided under OAR 345-024-0620(5). 11 (2) In the site certificate, the Council shall require the certificate holder to disburse the 12 offset funds and other funds required as specified in sections (3) and (4), unless the 13 Council finds that no qualified organization exists, in which case the Council shall require 14 the certificate holder to disburse the offset funds as specified in OAR 345-024-0720(2). 15 (3) When the certificate holder receives written notice from the qualified organization 16 certifying that the qualified organization is contractually obligated to pay any funds to 17 implement offsets using the offset funds, the certificate holder shall make the requested 18 amount available to the qualified organization unless the total of the amount requested 19 and any amounts previously requested exceeds the offset funds, in which case the 20 certificate holder shall make available only the remaining amount of the offset funds. 21 The qualified organization shall use at least 80 percent of the offset funds for contracts 22 to implement offsets. The qualified organization shall assess offsets for their potential to 23 qualify in, generate credits in or reduce obligations in other regulatory settings. The 24 qualified organization may use up to 20 percent of the offset funds for monitoring, 25 evaluation, administration and enforcement of contracts to implement offsets. 26 (4) At the request of the qualified organization and in addition to the offset funds, the 27 certificate holder shall pay the qualified organization an amount equal to 10 percent of 28 the first $500,000 of the offset funds and 4.286 percent of any offset funds in excess of 29 $500,000. The certificate holder for a base load gas plant shall pay not less than 30 $50,000, unless the Council specifies a lesser amount in the site certificate. In the site 31 certificate, the Council may specify a minimum amount that other fossil-fueled power 32 plants or nongenerating energy facilities must pay. This payment compensates the 33 qualified organization for its costs of selecting offsets and contracting for the 34 implementation of offsets. 35 (5) Notwithstanding any provision to the contrary, a certificate holder subject to this rule 36 has no obligation with regard to offsets, the offset funds or the funds required by section 37 (4) other than to make available to the qualified organization the total amount required 38 under OAR 345-024-0560(3), OAR 345-024-0600(3) and (4), OAR 345-024-0630(2), (4) 39 and (5), and section (4) of this rule. The Council shall not base a revocation of the site 40 certificate or any other enforcement action with respect to the certificate holder on any 41 nonperformance, negligence or misconduct by the qualified organization. 42


(6) For monetary path payments a certificate holder must make before beginning 1 construction, the certificate holder shall make all offset fund payments and all payments 2 required by section (4) to the qualifying organization in real dollars of the year in which 3 the Council issues a final order applying the carbon dioxide emissions standard to the 4 energy facility. In the site certificate, the Council shall specify an appropriate inflation 5 index for calculating real dollars. For a non-base load power plant, if a certificate holder 6 must make a payment as described in OAR 345-024-0600(4), the certificate holder shall 7 make a payment that has the same present value per ton of carbon dioxide as the 8 monetary path offset rate of the year in which the Council issued the final order applying 9 the carbon dioxide standard. In the site certificate, the Council shall specify the 10 methodology for calculating present value. If the certificate holder of a nongenerating 11 facility must make payments as described in OAR 345-024-0630(4) and (5), the Council 12 shall specify in the site certificate the method for calculating the rate for the dollar value 13 per ton of carbon dioxide required according to subsection (a) or (b) below: 14

(a) Unless the applicant and the Council agree to the methodology in subsection (b), 15 the certificate holder shall make payments that have the same present value per ton 16 of carbon dioxide as the monetary path offset rate of the year in which the Council 17 issued the final order applying the carbon dioxide standard. The Council shall set an 18 appropriate discount rate for calculating the present value, using the cost of capital 19 most recently approved by a state utility regulatory commission for that utility or a 20 similar utility as a guide; or 21 (b) If the applicant requests and the Council agrees, the certificate holder shall make 22 payments at the monetary path offset rate in effect on the date the certificate holder 23 makes the payment. 24 25

OAR 345-024-0720 Qualified Organization 26 27

(1) If the applicant elects to meet the applicable carbon dioxide emissions standard in 28 whole or in part under OAR 345-024-0560(3), OAR 345-024-0600(3) and (4), or OAR 345-29 024-0630(2), (4) and (5), the applicant shall identify the qualified organization. The 30 applicant may identify an organization that has applied for, but has not received, an 31 exemption from federal income taxation, but the Council may not find that the 32 organization is a qualified organization unless the organization is exempt from federal 33 taxation under section 501(c)(3) of the Internal Revenue Code as amended and in effect 34 on December 31, 1996. 35 (2) If the Council finds there is no qualified organization, the certificate holder shall 36 disburse the offset funds according to one or more contracts for implementation of 37 offsets as determined by the following process: 38

(a) The Council shall establish criteria for selection of offsets, based on the reduction 39 of net carbon dioxide emissions and the criteria set forth in OAR 345-024-0550(3) for 40 base load plants, OAR 345-024-0590(3) for non-base load power plants and OAR 41 345-024-0620(3) for nongenerating facilities. The Council may consider the costs of 42


particular types of offsets in relation to the expected benefits of such offsets. In 1 establishing criteria, the Council shall not require the certificate holder to select 2 particular offsets and shall allow the certificate holder a reasonable range of choices 3 in selecting offsets. 4 (b) Based on the criteria established by the Council, the certificate holder shall select 5 one or more offsets. The certificate holder shall give written notice of its selections to 6 the Council and to any person requesting notice. For the purposes of this rule, the 7 date of notice is the date the certificate holder places the notice in the United States 8 mail, with first-class postage prepaid. 9 (c) On petition by the Department of Energy or by any person adversely affected or 10 aggrieved by the certificate holder's selection of offsets, or on the Council’s own 11 motion, the Council may review the selection. The petition must be received by the 12 Council within 30 days of the date of notice. 13 (d) The Council shall approve the certificate holder's selection unless it finds that the 14 selection is not consistent with criteria established under subsection (a). 15 (e) The certificate holder shall execute one or more contracts to implement the 16 selected offsets within 18 months after commencing construction of the facility 17 unless the Council allows additional time based on a showing of good cause by the 18 certificate holder. If a certificate holder would have made a payment to a qualified 19 organization as described in OAR 345-024-0600(4) or OAR 345-024-0630(4) or (5), 20 the certificate holder shall instead execute one or more contracts to implement the 21 selected offsets, by a method acceptable to the Council, within 18 months after 22 reporting to the Council as described in OAR 345-024-0590(5) or within 18 months 23 after the Department notifies the certificate holder that the certificate holder must 24 replenish the offset credit account as described in OAR 345-024-0630(4). The 25 certificate holder shall, under such contracts, obligate the expenditure of at least 85 26 percent of the offset funds for the implementation of offsets. The certificate holder 27 may spend no more than 15 percent of the offset funds on monitoring, evaluation 28 and enforcement of such contracts. 29 (f) The certificate holder’s financial liability for implementation, monitoring, 30 evaluation and enforcement of offsets under this subsection (2) is limited to the 31 amount of any offset funds not already contractually obligated. The Council shall not 32 base a revocation of the site certificate or any other enforcement action with respect 33 to the certificate holder on any nonperformance, negligence or misconduct by the 34 entity or entities implementing, monitoring or evaluating the selected offsets. 35

36 (3) Every qualified organization that has received funds under this rule shall, at five-year 37 intervals beginning on the date of receipt of such funds, provide the Council with the 38 information the Council requests about the qualified organization's performance. The 39 Council shall evaluate the information requested and, based on such information, shall 40 make recommendations to the Legislative Assembly that the Council deems appropriate. 41


1 IV.S.1. Carbon Dioxide Findings of Fact 2

3 The applicant provided information about compliance with the Council’s Carbon Dioxide 4 Standard in Exhibit Y of the application. As explained in that exhibit, the proposed facility would 5 be classified as a “non-base load power plant” as defined in OAR 345-001-0010(40) because the 6 project would be limited by the site certificate to an average number of hours per year of not 7 more than 6,600 hours. Under this rule definition, for a plant designed to operate at variable 8 loads, the facility’s annual hours of operation are determined by dividing the actual annual 9 electric output of the facility in megawatt-hours by the facility’s nominal electric generating 10 capacity in megawatts. The applicant proposes to use only natural gas as fuel for the station.415 11 Because the applicant is proposing to use an alternative method for reclaiming wastewater via 12 a zero liquid discharge system, this section addresses compliance with the CO2 standard based 13 upon facility operation with and without the zero liquid discharge system. To apply the 14 standard, the Council must determine the excess carbon dioxide emissions rate of the energy 15 facility and the excess carbon dioxide emissions for 30 years. 16 17 Carbon Dioxide Emissions 18 For a non-base load power plant, the Council must find that the net CO2 emissions rate of the 19 proposed facility does not exceed 0.675 pounds of carbon dioxide per kilowatt of net electric 20 power output, with CO2 emissions and net electric power output measured on a ‘new and 21 clean basis,’ according to OAR 345-024-0590. Therefore, the Council must determine the gross 22 carbon dioxide emissions that are reasonably likely to result from the operation of the 23 proposed facility. For a non-base load power plant, the Council must base this determination on 24 the proposed design of the facility, the limitation on the hours of generation and the average 25 site conditions, assuming a 30-year life for the plant, pursuant to OAR 345-001-0010(40). 26 27 Under to OAR 345-001-0010(38), the Council’s definition of ‘new and clean basis’ specifies 28 average annual site conditions, including temperature, barometric pressure and relative 29 humidity. The applicant provided the following average annual site conditions for the Station: 30 31 Temperature: 53.0 degree Fahrenheit 32 Barometric Pressure: 14.399 pounds per square inch 33 Relative Humidity: 64.8 percent416 34 35 According the ASC, the gross carbon dioxide emissions for 30 years’ operation at the facility, at 36 the average conditions listed above, and operating for 4,400 hours per year, were estimated to 37 be approximately 57,834 million pounds of CO2 with or without a zero liquid discharge 38 system.417 The net CO2 emissions rate (lbs CO2/kwh) was estimated to be 1.055 (lbs CO2/kwh) 39

415 ASC, Exhibit Y, Y-6. 416 ASC, Exhibit Y, Y-5. 417 ASC, Exhibit Y, Y-4


without a ZLD system and 1.064 (lbs CO2/kwh) with a ZLD system. Therefore, the excess CO2 1 emissions rate (lbs CO2/kWH) without a ZLD system is 0.380 and 0.389 with a ZLD system. The 2 total excess CO2 emissions for 30 years, at average site conditions and operating at 4,400 hours 3 per year are estimated to be approximately 10.416 million tons or 10.57 million tons of CO2 4 with utilization of a zero liquid discharge elimination system.418 5 6 Table S-1 below breaks down the applicant’s carbon dioxide emission factor calculations for 7 normal operation and Table S-2 breaks down the applicant’s carbon dioxide emission factor 8 calculations with a ZLD system. 9 10 Table S-1 Carbon Dioxide Emission Factor Calculations without a ZLD System

A. CO2 Standard

415 MW of Combustion

Turbines CO2 Standard (lbs CO2/kWh) 0.675

B. Parameters for Non-Base Load Gas Plant Net Power Output (kW) 415,312

New and Clean Gross Heat Rate (Btu/kWh) HHV 8,781

Annual Hours of Operation 4,400

C. Parameters for Power Augmentation

Net Power Output (kW) NA

New and Clean Gross Heat Rate (Btu/kWh) HHV

Annual Hours of Operation

D. Calculations New Power Output (kW) 415,312


Percent Time on Non-Base Load 50.2%

Net Annual Generation (million kWh/yr) 1,827

Deemed Life of Plant (years) by Statute or Rule 30

Total Gross Plant Output (million kWh for 30 years) 56,223

Total Net Plant Output (million kWh for 30 years) 54,821

Gross Heat Rate (Btu/kWh) HHV 8,781

CO2 Emissions Rate (lbs CO2/Btu) 0.00011715

Total Gross CO2 Emissions (million lbs for 30 years) 57,834

E. Total Operations Combined Net Output (million kWh for 30 years) 54,821

Combined CO2 Emissions (million lbs for 30 years) 57,834

418 ASC, Exhibit Y, Y-5.


Table S-1 Carbon Dioxide Emission Factor Calculations without a ZLD System

Net CO2 Emissions Rate (lbs CO2/kWh) 1.055

CO2 Standard (lbs CO2/kWh) 0.675

Excess CO2 Emissions Rate (lbs CO2/kWh) 0.380

Excess Tons CO2 (million tons over 30 years) 10.416

F. Monetary Path Offset Fund Rate ($/ton CO2) $1.27

Offset Funds Required ($ million)419 $13.23

Contracting and Selection Funds ($ million)420 $0.60

Monetary Path Requirement ($ million) $13.83

Key: Btu/kWh = British thermal units per kilowatt hour; CO2 carbon dioxide; HHV = higher

heating value; kW = kilowatt; kWh/yr; kilowatts-hours per year; lbs = pounds; lbs CO2/kWh =

pounds of carbon dioxide per kilowatt hour; NA = not applicable

1 Table S-2 Carbon Dioxide Emission Factor Calculations with a ZLD System

A. CO2 Standard

411.9 MW of Combustion

Turbines


B. Parameters for Non-Base Load Gas Plant Net Power Output (kW) 411,882

New and Clean Gross Heat Rate (Btu/kWh) HHV 8,781


C. Parameters for Power Augmentation

Net Power Output (kW)

NA New and Clean Gross Heat Rate (Btu/kWh) HHV

Annual Hours of Operation

D. Calculations Net Power Output (kW) 411,882


Percent Time on Non-Base Load 50.2%

Net Annual Generation (million kWh/year) 1812.3

419 To arrive at offset funds required, the applicant multiplied the excess tons of carbon dioxide for the facility by the offset fund rate, $1.27 per ton of carbon dioxide 420 Selection and contracting funds are determined by applying the formula in OAR 345-024-0710(4)


Table S-2 Carbon Dioxide Emission Factor Calculations with a ZLD System

Deemed Life of Plant (years) by Statute or Rule 30

Total Gross Plant Output (million kWh for 30 years) 56,223

Total Net Plant Output (million kWh for 30 years) 54,368

Gross Heat Rate (Btu/kWh) HHV 8,781

CO2 Emissions Rate (lbs CO2/Btu) 0.00011715

Total Gross CO2 Emissions (million lbs for 30 years) 57,834

E. Total Operations Combined Net Output (million kWh for 30 years) 54,368

Combined CO2 Emissions (million lbs for 30 years.) 57,834

Net CO2 Emissions Rate (lbs CO2/kWh) 1.064


Excess CO2 Emissions Rate (lbs CO2/kWh) 0.389

Excess Tons CO2 (million tons over 30 years) 10.57

F. Monetary Path Offset Fund Rate ($/ton CO2) $1.27

Offset Funds Required ($ million)421 $13.42

Contracting and Selection Funds ($ million)422 $0.60

Monetary Path Requirement ($ million) $14.02

Key: Btu/kWh = British thermal units per kilowatt hour; CO2 carbon dioxide; HHV = higher

heating value; kW = kilowatt; kWh/yr; kilowatts-hours per year; lbs = pounds; lbs CO2/kWh =

pounds of carbon dioxide per kilowatt hour; NA = not applicable 1

The estimates of carbon dioxide emission calculations for the proposed facility reflected in 2 these tables do not necessarily reflect the actual emissions, offsets, or monetary path payments 3 to be required. The conditions relating to the carbon dioxide standard allow the applicant 4 flexibility in its choice of equipment vendor and the facility’s design, within parameters allowed 5 pursuant to OAR 345-027-0050. Therefore, pursuant to OAR 345-024-0590(4), before beginning 6 construction of the facility, the applicant must notify the department in writing of its final 7 selection of an equipment vendor and must submit a written design information report to the 8 department sufficient to verify the facility’s new and clean heat rate and its nominal electric 9 generating capacity at average annual site conditions. The department must thereafter use this 10 information as the basis for calculating the gross carbon dioxide emissions from the facility and 11

421 To arrive at offset funds required, the applicant multiplied the excess tons of carbon dioxide for the facility by the offset fund rate, $1.27 per ton of carbon dioxide 422 Selection and contracting funds are determined by applying the formula in OAR 345-024-0710(4)


the amount of greenhouse gas emissions reduction the applicant must provide under OAR 345-1 024-0600. To ensure compliance with these requirements the Council adopts the following 2 condition: 3 4

Condition S.1: Before beginning construction, the certificate holder shall notify the 5 department in writing of its final selection of an equipment vendor and shall submit a 6 written design information report to the department sufficient to verify the facility’s 7 designed new and clean heat rate and its nominal electric generating capacity at average 8 annual site conditions. The certificate holder shall include the proposed total number of 9 hours of operation, subject to the limitation that the total annual average number of hours 10 of operation per year is not more than 6,600 hours. At the time the certificate holder 11 submits the information required by this condition, the certificate holder shall also specify 12 its election of method used to measure or calculate carbon dioxide emissions. The election 13 shall apply for the initial reporting required pursuant to Condition S.8 or S.9, as applicable, 14 and to each reporting period required pursuant to Condition S.10. 15

16 Qualified Organization, Offset funds 17 The applicant has elected to comply with the carbon dioxide emissions standard by providing 18 offset funds to a qualified organization as allowed by OAR 345-024-0600(3) and in compliance 19 with the monetary path payment requirement of OAR 345-024-0710.423 The applicant proposes 20 to provide offset funds and funds for the cost of selecting and contracting for offsets to the 21 Climate Trust. The Council has previously found that the Climate Trust is a “qualified 22 organization.” The Council finds that The Climate Trust continues to meet the requirements of a 23 “qualified organization,” defined by ORS 469.503(2)(e)(N), for the following reasons: 24 25 • The Climate Trust is exempt from federal taxation under section 501(c)(3) of the Internal 26

Revenue Code. By a letter dated November 19, 1997, the Internal Revenue Service 27 determined that The Climate Trust (then the Oregon Climate Trust) is exempt from 28 taxation under section 501(c)(3). 29

30 • The Climate Trust is incorporated in the State of Oregon. The Articles of Incorporation 31

are filed with the Oregon Secretary of State. 32 33 • The Articles of Incorporation of The Climate Trust require that offset funds received under 34

OAR 345-024-0710(3) (ORS 469.503(2)) are to be used for offsets projects that would 35 result in direct reduction, elimination, sequestration, or avoidance of CO2 emissions. The 36

Articles of Incorporation of The Climate Trust require that decisions regarding the use of 37 such funds be made by a body composed of seven voting members, of which three are 38 appointed by the Council, three are Oregon residents appointed by the Bullitt Foundation, 39



and one is appointed by applicants for site certificates that are subject to ORS 1 469.503(2)(d) and the holders of such site certificates. 2

3 • The Climate Trust has made available on an annual basis, beginning after the first year of 4

operation, a signed opinion of an independent certified public accountant stating that the 5 qualified organization’s use of funds pursuant to ORS 469.503 conforms with generally 6 accepted accounting principles. 7

8 • The Climate Trust has provided DOE with documentation that the Climate Trust has 9

complied with OAR 345-001-0010(1)(48)(e) (ORS 469.503(2)(e)(K)(v)). 10 11 Monetary Path Payment 12 The combination of offset funds and contracting and selection funds constitutes the monetary 13 path payment requirement. Using the parameters in the ASC, the tables above provide the 14 excess tons of carbon dioxide expected to result from operation of the proposed facility 15 multiplied by the offset fund rate of $1.27 per ton of carbon dioxide. Based on the ASC, the 16 offset funds required for the monetary path payment would amount to $13.83 million for 17 normal operations and $14.02 million with a ZLD system, with contracting and selection funds 18 represented at $0.60 million.424 19 20 Pursuant to ORS 469.503(2)(d) and OAR 345-024-0710(1), if the applicant has elected to 21 comply with the carbon dioxide emissions standard pursuant to the monetary path payment, 22 the applicant must provide a bond or letter of credit in a form “reasonably acceptable to the 23 Council to ensure the payment of the offset funds” and any additional funds required to the 24 qualifying organization before beginning commencement of construction. Pursuant to OAR 345-25 024-0710(4), at the request of the qualified organization, the applicant must pay the qualified 26 organization an amount equal to 10 percent of the $500,000 of the offset funds and 4.286 27 percent of any offset funds in excess of $500,000. This payment is to compensate the qualified 28 organization for its costs of selecting offsets and contracting for the implementation of offsets. 29 30 The applicant has requested the option to provide either a bond or letter of credit to secure the 31 funds it must provide to the qualifying organization. Pursuant to OAR 345-024-0710 (6), for 32 those monetary path payments the applicant must make before beginning construction, the 33 applicant must make all offset fund payments and those required to compensate the qualified 34 organization in selecting offsets and implementing offsets under OAR 345-027-0710(4), 35 discussed above, to the qualifying organization in real dollars of the year in which the Council 36 issues the final order for the proposed facility. In order to ensure compliance with the 37 requirements in OAR 345-024-0590 through 345-024-0710 and to provide the mechanism for 38 calculating the excess carbon dioxide emissions and the actual monetary path payment, the 39 Council adopts the following conditions: 40



1 Condition S.2: For the purposes of this site certificate, “monetary path payment 2 requirement” means the amount of offset funds determined pursuant to OAR 345-024-3 0590 and -600 and the amount of the selection and contracting funds that the certificate 4 holder must disburse to the Climate Trust, as the qualified organization, pursuant to OAR 5 345-024-0710 and the site certificate. The certificate holder shall calculate the monetary 6 path payment using an offset fund rate of $1.27 per ton of carbon dioxide in 2015 dollars as 7 follows: 8 9

a. The certificate holder shall calculate the 2015 dollars using the index described in 10 subsection (c) below. 11 b. The certificate holder shall increase the amount of the bond or letter of credit 12 described in Condition S.6 by the percentage increase in the index. The certificate 13 holder shall index the funds from the date of the Council’s approval of the site 14 certificate to the date of disbursement of funds to The Climate Trust 15 c. The calculation of 2015 dollars shall be made using the same index described in 16 Condition G.4. The amount of the bond or letter of credit shall increase annually by the 17 percentage increase in the Index and shall be pro-rated within the year to the date of 18 disbursement to The Climate Trust from the date of Council approval of the site 19 certificate. If at any time the Index is no longer published, the Council shall select a 20 comparable calculation of 2015 dollars without an amendment of the site certificate. 21 22

Condition S.3: To calculate the initial monetary path payment requirement, the certificate 23 holder shall use the contracted design parameters for capacities and heat rates submitted 24 under Condition S.1. 25 26 Condition S.4: The certificate holder shall submit all monetary path payment requirement 27 calculations to the department for verification in a timely manner before submitting a bond 28 or letter of credit for Council approval, before entering into a Memorandum of 29 Understanding with The Climate Trust as required by Condition S.5, and before making 30 disbursement to The Climate Trust. The net carbon dioxide emissions rate of the facility 31 shall not exceed 0.675 pounds of carbon dioxide per kilowatt-hour of net electric power 32 output measured on a new and clean basis, as the department may modify such basis 33 pursuant to Condition S.8(c). 34

35 Condition S.5: Before beginning construction of the facility, the certificate holder must 36 enter into a Memorandum of Understanding (MOU) with The Climate Trust that establishes 37 the disbursement mechanism to transfer selection and contracting funds and offset funds 38 to The Climate Trust. 39 40

(a) The MOU must be substantially in the form of Appendix E to the final order on the 41 Application. At the request of the certificate holder, the Council may approve a different 42


form of a bond or letter of credit and concurrent MOU without an amendment of the 1 site certificate. 2 (b) Either the certificate holder or The Climate Trust may submit to the Council for the 3 Council’s resolution any dispute between the certificate holder and The Climate Trust 4 concerning the terms of the bond or letter of credit, the MOU or any other issues 5 related to the monetary path payment requirement. The Council’s decision shall be 6 binding on all parties. 7 8

Condition S.6: Before beginning construction of the facility, the certificate holder shall 9 submit to the Climate Trust a bond or letter of credit in the amount of the offset funds of 10 the monetary path payment requirement as determined under Condition S.2. 11 12

(a) The certificate holder shall use a form of bond or letter of credit that is substantially 13 in the form of Attachment B to the MOU described in Condition S.5. At the request of 14 the certificate holder, the Council may approve a different form of a bond or letter or 15 credit without an amendment of the site certificate. 16 (b) The certificate holder shall use an issuer of the bond or letter of credit approved by 17 the Council. 18 (c) The certificate holder shall maintain the bond or letter of credit in effect until the 19 certificate holder has disbursed the full amount of the offset funds to The Climate Trust. 20 The certificate holder may reduce the amount of the bond or letter of credit 21 commensurate with payments it makes to The Climate Trust. The bond or letter of 22 credit must not be subject to revocation before disbursement of the full amount of the 23 offset funds. 24 25

When the applicant receives written notice from the qualified organization certifying that the 26 qualified organization is obligated to pay any funds to implement offsets using the offset funds, 27 pursuant to OAR 345-024-0710(3), the applicant must make the requested amount available to 28 the qualified organization. Therefore, the Council adopts the following condition: 29

30 Condition S.7: The certificate holder shall disburse to The Climate Trust offset funds and 31 selection and contracting funds when requested by The Climate Trust in accordance with 32 Conditions S.10 and S.11 and the following requirements: 33 34

(a) The certificate holder shall disburse selection and contracting funds to The Climate 35 Trust before beginning construction and as appropriate when additional offset funds are 36 required under Conditions S.10 and S.11. 37 (b) Upon notice pursuant to subsection (c), The Climate Trust may request from the 38 issuer of the bond or letter of credit the full amount of all offset funds available or it 39 may request partial payment of offset funds at its sole discretion. Notwithstanding the 40 specific amount of any contract to implement an offset project, The Climate Trust may 41


request up to the full amount of offset funds the certificate holder is required to provide 1 to meet the monetary path payment requirement. 2 (c) The Climate Trust may request disbursement of offset funds pursuant to paragraph 3 (b) by providing notice to the issuer of the bond or letter of credit that The Climate Trust 4 has executed a bond or letter of intent to acquire an offset project. The certificate 5 holder shall require that the issuer of the bond or letter of credit disburse offset funds 6 to The Climate Trust within three business days of a request by The Climate Trust for the 7 offset funds in accordance with the terms of the bond or letter of credit. 8 9 Monetary Path Payment Adjustment 10 In the first 12 months of commercial operation of the facility, the certificate holder must 11 perform 100-hour tests, (Year One Tests) to ensure that the plant complies with the carbon 12 dioxide standard on a new and clean basis, as defined in ORS 469.503(2)(e)(G) and OAR 345-13 001-0010(38). The Year One Test determines the actual heat rate (Year One Heat Rate) and the 14 net electric power output (Year One Capacity) on a new and clean basis for each generating 15 unit. However, pursuant to OAR 345-001-0010(38)(b), the Council may adjust the results for the 16 average temperature, barometric pressure and relative humidity at the site during the times of 17 the year the facility is intended to operate. In addition, 100-hour tests performed for purposes 18 of the applicant’s commercial acceptance of the facility may suffice in lieu of testing after 19 beginning commercial operation. To calculate actual gross carbon dioxide emissions, the 20 applicant may, therefore, use the new and clean heat rate and the actual hours of operation or 21 report to the Council the actual measured or calculated carbon dioxide emissions as reported to 22 either the Oregon Department of Environmental Quality or the U.S. Environmental Protection 23 Agency pursuant to the mandatory carbon dioxide emissions reporting requirements. If the 24 actual emissions calculated exceed the projected emissions for that period, additional offsets 25 may be required. 26 27 If the results show that the certificate holder must offset additional carbon dioxide emissions, 28 additional selection and contracting funds would also be required. To ensure the facility reports 29 to the Council and provides the necessary offsets based upon the actual gross carbon dioxide 30 emissions, the Council adopts the following conditions: 31 32

Condition S.8: Except as provided in Condition S.9, within the first 12 months of commercial 33 operation of the facility, the certificate holder shall conduct a 100-hour test (Year One Test). 34 Tests performed for purposes of the certificate holder’s commercial acceptance of the 35 facility may suffice to satisfy this condition in lieu of testing after beginning commercial 36 operation. 37

38 (a) The certificate holder shall conduct the Year One Test to determine the actual heat 39 rate (Year One Heat Rate) and the net electric power output (Year One Capacity) on a 40 new and clean basis, without degradation, for each generating unit, with the results 41 adjusted for the average annual site condition for temperature, barometric pressure, 42


relative humidity, and operating hours per year. The certificate holder shall use a rate of 1 117 pounds of carbon dioxide per million Btu of natural gas fuel. 2 (b) The certificate holder shall notify the department at least 60 days before conducting 3 the tests required in subsection (a) unless the certificate holder and the department 4 have mutually agreed that less notice will suffice. 5 (c) Before conducting the tests required in subsection (a), the certificate holder shall, in 6 a timely manner, provide to the department for its approval a copy of the protocol for 7 conducting the tests. The department may approve modified parameters for testing on 8 a new and clean basis pursuant to OAR 345-024-0590(1) without a site certificate 9 amendment. The certificate holder shall not conduct the tests required in subsections 10 (a) until the department has approved the testing protocols. 11 (d) Within 60 days after completing the Year One Tests, the certificate holder shall 12 provide to the Council reports of the results of the Year One Tests. 13

14 Condition S.9: If the certificate holder has elected to calculate excess carbon dioxide 15 emissions based on direct measurements, then the Year One Test described in Condition S.8 16 is not required. 17

18 (a) If the Year One Test is not performed, the certificate holder must report carbon 19 dioxide emissions using actual measured emissions as reported to the Department of 20 Environmental Quality or the U.S. Environmental Protection Agency for all subsequent 21 five year periods over the life of the facility and may not change its election to report 22 based on new and clean heat rate in any subsequent five year period. 23 (b) If the Year One Test is not performed pursuant to Condition S.8, then the certificate 24 holder shall report the facility’s net kWh generation and actual measured carbon 25 dioxide emissions for the 12 month period following start of commercial operation. The 26 certificate holder shall report the net kWh generation and actual carbon dioxide 27 emissions for this period to the department within two months of the end of the first 12 28 month period. The certificate holder shall use the net kWh generation and measured 29 carbon dioxide emissions to perform the calculations to determine if a supplemental 30 monetary path payment is needed as set forth in Condition S.10. The certificate holder 31 shall submit these calculations to the department for verification. 32 33

Condition S.10: Based on the data from the Year One Tests described in Condition S.8, or 34 actual measured emissions described in Condition S.9, the certificate holder shall calculate 35 an adjusted monetary path payment. The certificate holder shall submit its calculations to 36 the department for verification. If the adjusted amount exceeds the amount of the bond or 37 letter of credit provided according to Condition S.7 before beginning construction, the 38 certificate holder shall fully disburse the excess amount directly to The Climate Trust within 39 30 days of the department’s verification of the calculations. 40 41


(a) The certificate holder shall include the appropriate calculations of the adjusted 1 monetary path payment with its reports of the results of the Year One Tests required 2 under Condition S.8 or actual measured emissions required under Condition S.9. 3 (b) For calculating the adjusted monetary path payment, the certificate holder shall use 4 an offset fund rate of $1.27 per ton of carbon dioxide (in 2015 dollars) and shall 5 calculate contracting and selecting funds based on 10 percent of the first $500,000 in 6 offset funds and 4.286 percent of any offset funds in excess of $500,000 (in 2015 7 dollars). 8 (c) In no case shall the certificate holder diminish the value of the bond or letter of 9 credit it provided before beginning construction or receive a refund from The Climate 10 Trust based on the calculations made using the results of the Year One Test required 11 under Condition S.8 or actual measured emissions required under Condition S.9. 12 13

Condition S.11: Every 5 years after commencing commercial operation of the facility (5-year 14 reporting period), the certificate holder shall report to the Council the information required 15 by either subsection (a) or (b), below. The certificate holder shall submit five-year reports to 16 the Council within 30 days of the anniversary date of beginning commercial operation of the 17 facility. 18

19 (a) If the certificate holder has elected to calculate any excess emissions using annual 20 average hours of operation and new and clean heat rates, the certificate holder shall 21 report the annual average hours of operation of each generating unit within the facility 22 during that five-year reporting period. The certificate holder shall use the Year One 23 Capacity and Year One Heat Rate that it reports for the corresponding generating units 24 pursuant to Condition S.8 to calculate whether it owes supplemental monetary path 25 payments. 26 (b) If the certificate holder has elected to calculate any excess emissions using actual or 27 measured carbon dioxide emissions reported to either the Oregon Department of 28 Environmental Quality or the U.S. Environmental Protection Agency pursuant to a 29 mandatory carbon dioxide reporting requirement, the certificate holder shall submit to 30 the Council the carbon dioxide reporting data and net kWh generation for that five-year 31 reporting period and shall use that data to determine whether it owes supplemental 32 monetary path payments. 33 (c) If the department determines that the facility exceeds the projected net total carbon 34 dioxide emissions calculated pursuant to Condition S.3 and either Condition S.8 or S.9, 35 prorated for five years, during any five-year reporting period, the certificate holder shall 36 offset excess emissions for the specific reporting period according to subsection (c)(1) 37 and shall offset the estimated future excess emissions according to subsection (c)(2). 38 The certificate holder shall offset excess emissions using the monetary path described 39 under Condition S.2. The certificate holder shall disburse funds to The Climate Trust 40 within 30 days after notification by the department of the amount that the certificate 41 holder owes. 42


1 (1) In determining the excess carbon dioxide emissions that the certificate holder 2 must offset for a five-year period, the department shall apply OAR 345-024-3 0600(4)(a), unless the certificate holder has elected under OAR 345-024-0590(5) to 4 utilize actual or measured carbon dioxide emissions as reported to either the 5 Oregon Department of Environmental Quality or the U.S. Environmental Protection 6 Agency pursuant to a mandatory carbon dioxide reporting requirement. The 7 certificate holder shall pay for the excess emissions at $1.27 per ton of carbon 8 dioxide emissions (in 2015 dollars). The department shall notify the certificate 9 holder and The Climate Trust of the amount of the payment required, using the 10 monetary path, to offset excess emissions. 11 12 (2) The department shall calculate estimated future excess emissions and notify the 13 certificate holder of the amount of payment required, using the monetary path, to 14 offset them. To estimate excess emissions for the remaining period of the deemed 15 30-year life of the facility, the department shall use the parameters specified in OAR 16 345-024-0600(4)(b). The certificate holder shall pay for the estimated excess 17 emissions at $1.27 per ton of carbon dioxide (in 2015 dollars). The department shall 18 notify the certificate holder of the amount of payment required, using the monetary 19 path, to offset future excess emissions. 20

21 Modifications 22 OAR 345-027-0050 provides: 23 24

(2) A site certificate amendment is not required if a proposed change in the design, 25 construction or operation of a facility is in substantial compliance with the terms and 26 conditions of the site certificate and is a change: 27

28 (a) To an electrical generation facility that would increase the electrical 29 generating capacity and would not increase the number of electric generators at 30 the site, change fuel type, increase fuel consumption by more than 10 percent, or 31 enlarge the facility site. 32

33 Under OAR 345-027-0050(5), the certificate holder may request a determination by the 34 department that an amendment is not required, based on information provided by the 35 certificate holder about how proposed changes would comply with applicable standards. 36 Under OAR 345-027-0050(2)(a), a site certificate amendment is not required for incremental 37 increases in generating capacity that “would not increase the number of electric generators at 38 the site, change fuel type, increase fuel consumption by more than 10 percent, or enlarge the 39 facility site.” If a certificate holder had not yet made monetary path requirement funds 40 available to a qualified organization, it might take advantage of the flexibility that OAR 345-027-41 0050(2)(a) offers when it certifies the capacity and heat rate of the facility. However, an 42


increase in capacity and heat rate after a certificate holder has already complied with the 1 conditions relating to the carbon dioxide standard might require an amendment if the change 2 in capacity and heat rate resulted in an increase in the monetary path payment requirement. In 3 order to allow for a modification of the monetary path payment requirement without an 4 amendment of the site certificate for incremental increases that otherwise fall within the limits 5 specified in OAR 345-027-0050(2)(a) after a certificate holder has already complied with the 6 conditions relating to the carbon dioxide standard before beginning construction, the Council 7 adopts the following condition: 8 9

Condition S.12: After the certificate holder has complied with the conditions relating to the 10 carbon dioxide standard before beginning construction, incremental increases in capacity 11 and heat rate that otherwise fall within the limits specified in OAR 345-027-0050(2) do not 12 require an amendment of the site certificate if the certificate holder complies substantially 13 with Conditions S.1 through S.11, except as modified below, and if: 14 15

(a) The department or the Council determines, as described in OAR 345-027-0050(5), 16 that the proposed change in the facility does not otherwise require an amendment; and 17

18 (b) The certificate holder complies with the appropriate carbon dioxide emissions 19 standard and monetary offset rate in effect at the time the department or the Council 20 makes its determination under this condition. 21

22 Based on the evidence provided by the applicant and subject to compliance with the site 23 certificate 24 conditions, the Council finds that the construction and operation of the facility would meet the 25 standards and means of compliance for non-base load power plants required in OAR 345-024-26 0590 and OAR 345-024-0600, and the monetary path payment requirements of OAR 345-024-27 0710. 28 29

IV.S.2. Carbon Dioxide Standard: Conclusions of Law 30 31

Based on the foregoing findings and the evidence in the record, and subject to compliance with 32 the site certificate conditions, the Council finds that the facility complies with the Council’s 33 Carbon Dioxide Standard. 34 35 VI. FINAL CONCLUSIONS AND ORDER 36 37 The applicant has submitted an application to construct a natural gas energy facility with an 38 electric generating capacity of 415 megawatts. The Council finds that a preponderance of 39 evidence on the record supports the following conclusions: 40 41

Perennial Wind Chaser Station Final Order September 2015 Appendix A Page 1

Appendix A

Perennial Wind Chaser Station Site Certificate Conditions


A. General Standards of Review Conditions: Condition A.1: The certificate holder shall begin construction of the facility within three years after the effective date of the site certificate. Under OAR 345-015-0085(9), the site certificate is effective upon execution by the Council chair and the applicant. Condition A.2: The certificate holder shall complete construction of the facility within six years after the effective date of the site certificate. Condition A.3 [OAR 345-027-0020(2)]: The certificate holder shall submit a legal description of the site to the Oregon Department of Energy within 90 days after beginning operation of the facility. The legal description required by this rule means a description of metes and bounds or a description of the site by reference to a map and geographic data that clearly and specifically identify the outer boundaries that contain all parts of the facility. Condition A.4 [OAR 345-027-0020(3)]: The certificate holder shall design, construct, operate, and retire the facility:

(a) Substantially as described in the site certificate; (b) In compliance with the requirements of ORS Chapter 469, applicable Council rules, and applicable state and local laws, rules and ordinances in effect at the time the site certificate is issued; and (c) In compliance with all applicable permit requirements of other state agencies.

Condition A.5 [OAR 345-027-0020(4)]: The certificate holder shall begin and complete construction of the facility by the dates specified in the site certificate. Condition A.6 [OAR 345-027-0020(5)]: Except as necessary for the initial survey or as otherwise allowed for wind energy facilities, transmission lines or pipelines under this section, the certificate holder shall not begin construction, as defined in OAR 345-001-0010, or create a clearing on any part of the site until the certificate holder has construction rights on all parts of the site. For the purpose of this rule, “construction rights” means the legal right to engage in construction activities. For wind energy facilities, transmission lines or pipelines, if the certificate holder does not have construction rights on all parts of the site, the certificate holder may nevertheless begin construction, as defined in OAR 345-001-0010, or create a clearing on a part of the site if the certificate holder has construction rights on that part of the site and the certificate holder would construct and operate part of the facility on that part of the site even if a change in the planned route of a transmission line or pipeline occurs during the certificate holder’s negotiations to acquire construction rights on another part of the site. Condition A.7 [OAR 345-027-0020(6)]: If the certificate holder becomes aware of a significant environmental change or impact attributable to the facility, the certificate holder shall, as soon as possible, submit a written report to the department describing the impact on the facility and any affected site certificate conditions.


Condition A.8 [OAR 345-027-0020(11)]: Upon completion of construction, the certificate holder shall restore vegetation to the extent practicable and shall landscape all areas disturbed by construction in a manner compatible with the surroundings and proposed use. Upon completion of construction, the certificate holder shall remove all temporary structures not required for facility operation and dispose of all timber, brush, refuse and flammable or combustible material resulting from clearing of land and construction of the facility. Condition A.9 [OAR 345-027-0020(15)]: Before any transfer of ownership of the facility or ownership of the site certificate holder, the certificate holder shall inform the department of the proposed new owners. The requirements of OAR 345-027-0100 apply to any transfer of ownership that requires a transfer of the site certificate. Condition A.10 [OAR 345-027-0023(2)]: The certificate holder shall submit to the department copies of all incident reports involving the pipeline required under 49 CFR § 191.15. Condition A.11 [OAR 345-027-0023(3)]:

(a)The certificate holder shall design, construct and operate the lateral natural gas pipeline in accordance with the requirements of the U.S. Department of Transportation as set forth in Title 49 Code of Federal Regulations, Part 192, in effect as of the date of this rule; and (b)The certificate holder shall develop and implement a program using the best available practicable technology to monitor the proposed lateral natural gas pipeline to ensure protection of public health and safety.

B. Organizational Expertise Standard Condition B.1: Before beginning construction, the certificate holder shall provide the department with the identity and qualifications of the design, engineering and construction contractor(s) for the facility. The certificate holder shall select contractors that have substantial experience in the design, engineering and construction of similar facilities. The certificate holder shall report to the department any change in contractors during the design and construction of the facility. Condition B.2: The certificate holder must notify the department before conducting any work on the site that does not qualify as surveying, exploration, or other activities to define or characterize the site. The notice must include a description of the work and evidence that its value is less than $250,000 or evidence that the applicant has satisfied all conditions that are required prior to beginning construction. Condition B.3: The certificate holder shall contractually require all construction contractors and subcontractors involved in the construction of the facility to comply with all applicable laws and regulations and with the terms and conditions of the site certificate. Such contractual provisions shall not relieve the certificate holder of responsibility under the site certificate.


Condition B.4: Any matter of non-compliance under the site certificate is the responsibility of the certificate holder. Any notice of violation issued under the site certificate shall be levied on the certificate holder. Condition B.5 [OAR 345-027-0020(7)]: The certificate holder shall prevent the development of any conditions on the site that would preclude restoration of the site to a useful, non-hazardous condition to the extent that prevention of such site conditions is within the control of the certificate holder. Condition B.6: The certificate holder shall obtain all necessary federal, state and local permits or approvals required for construction, operation and retirement of the facility or ensure that its contractors obtain the necessary federal, state and local permits or approvals. Condition B.7: Before beginning construction, the certificate holder shall provide confirmation in writing to the department that the third parties have obtained all necessary permits or approvals and shall provide to the department proof of agreements between the certificate holder and the third parties regarding access to the resources or services secured by the permits or approvals. C. Structural Standard Condition C.1: Prior to beginning construction, the certificate holder shall complete additional geotechnical investigations, including field explorations and laboratory testing. The field explorations shall include additional borings for the final locations of the turbine/generators, access bridge, step-up substation, transmission towers and the buried transmission cable. Further, the site certificate holder shall perform a shear wave velocity measurement at the station and step-up substation sites. Condition C.2: Prior to beginning construction, the certificate holder shall complete the following additional engineering evaluations:

(a) Refining the seismic hazard evaluations and ground motion design parameters, including design response spectra. (b) Estimating soil bearing capacity and settlement for the transformer foundation transmission tower foundation, and other geotechnical evaluations based upon the final design layout and design loads (c) Developing geotechnical recommendations for trench excavation, shoring, and backfill of the buried transmission cable, as well as trenchless excavation techniques, if necessary to pass below existing railroad tracks. (d) Completing a final geotechnical design report

Condition C.3: The certificate holder shall design the facility to resist ground shaking from an event with a 2,475-year recurrence interval. All structures shall be designed in accordance with the Oregon Structural Special Code (2010) and the 2009 International Building Code.


Condition C.4: Prior to beginning construction, the certificate holder shall submit a written plan, subject to approval by the department, for implementing soil improvement techniques identified in the geotechnical evaluation. Condition C.5 [OAR 345-027-0020(12)]: The certificate holder shall design, engineer and construct the facility to avoid dangers to human safety presented by seismic hazards affecting the site that are expected to result from all maximum probable seismic events. As used in this rule, “seismic hazard” includes ground shaking, landslide, liquefaction, lateral spreading, tsunami inundation, fault displacement and subsidence. Condition C.6 [OAR 345-027-0020(13)]: The certificate holder shall notify the department, the State Building Codes Division and the Department of Geology and Mineral Industries promptly if site investigations or trenching reveal that conditions in the foundation rocks differ significantly from those described in the application for a site certificate. After the department receives the notice, the Council may require the certificate holder to consult with the Department of Geology and Mineral Industries and the Building Codes Division and to propose mitigation actions. Condition C.7 [OAR 345-027-0020(14)]: The certificate holder shall notify the department, the State Building Codes Division and the Department of Geology and Mineral Industries promptly if shear zones, artesian aquifers, deformations or clastic dikes are found at or in the vicinity of the site. D. Soil Protection Condition D.1: The certificate holder shall conduct all construction work in compliance with an Erosion and Sediment Control Plan (ESCP) satisfactory to the Oregon Department of Environmental Quality and as required under the National Pollutant Discharge Elimination Systems (NPDES) #1200-C Construction Stormwater Discharge General Permit. The certificate holder shall include in the ESCP any measures necessary to meet local erosion and sediment control requirements or stormwater management requirements. Condition D.2: During construction, the certificate holder must implement best management practices to control dust generated by construction activities, such as applying water to roads and disturbed soil areas. Condition D.3: To control the introduction and spread of noxious weeds, the certificate holder must implement the requirements of the approved Revegetation and Noxious Weed Control Plan during all phases of construction and operation of the facility. Amendments to the Revegetaion and Noxious Weed Control Plan must be reviewed and approved by the Umatilla County Weed Control Board and submitted to the department no later than 30 days after approval.


Condition D.4: If herbicides are determined necessary, the certificate holder shall contract with a licensed contractor to prescribe and apply the proper treatments. Additionally, the certificate holder shall coordinate with each individual landowner prior to the application of specific herbicides. The certificate holder shall submit to the department evidence of consultation with the landowners prior to application of the herbicides and evidence of a contract with a licensed contractor. Condition D.5: During construction, the certificate holder shall limit truck traffic to improved road surfaces. Within 60 days of completing construction, the applicant shall mitigate any areas of soil compaction by measures to include scarification and reseeding. Condition D.6: The certificate holder shall develop and implement a Hazardous Materials Management and Monitoring Plan (the Plan), which shall include and maintain a Materials Safety Data sheet for all hazardous chemicals stored onsite. The Plan shall contain best management practices and hazardous waste training for construction and operation personnel. The certificate holder shall submit a copy of this plan to the department for review and approval prior to the commencement of construction of the facility. Condition D.7: Prior to operation, the certificate holder shall develop a Spill Prevention Control and Countermeasure Plan for implementation during the facility’s operation. The certificate holder shall submit a copy of this plan to the department prior to commencement of operation of the Station. Condition D.8: If a reportable release of hazardous material occurs during construction or operation of the facility, the certificate holder shall notify the department within 72 hours of the occurrence, clean up the release, and dispose of any contaminated soil or other materials according to applicable regulations. The certificate holder shall make spill control and containment kits readily available in areas containing fuel oil, lubricating oil, hydraulic oil, and chemicals, as well as chemical unloading areas. The spill kits shall be equipped with sorbent pads, diatomaceous earth, shovels and appropriate hand tools, curtain booms if working near open water, personal protection equipment, and temporary waste disposal containers. Condition D.9: During construction of the facility, the certificate holder must complete the following monitoring to ensure that there are no significant potential adverse impacts to soils:

(a) During construction, the certificate holder shall monitor disturbed area erosion and sediment control measures at the active construction areas on a weekly basis and every two weeks on inactive areas. Inspection of both active and inactive areas must occur at least daily during periods when 0.5 inches or more rain has fallen in a 24-hour period. (b) The certificate holder must remove trapped sediment when storage capacity has been reduced by 50 percent. Sediments shall be placed in an upland area certified by a qualified wetlands specialist.


(c) If the erosion and sediment control measures are deemed ineffective, different strategies and/or measures shall be implemented, maintained and monitored after consultation with the department. (d) After completing construction in an area, the certificate holder must monitor the area until soils are stabilized and evaluate whether construction-related impacts to soils are being adequately addressed by the mitigation procedures described in the Erosion and Sediment Control Plan and the Revegetation and Noxious Weed Control Plan. As necessary, the certificate holder must implement follow-up restoration measures such as scarification and reseeding to address those remaining impacts.

E. Land Use Condition E.1: The certificate holder shall utilize fire retardant treated or non-combustible materials for all structures and fencing at the facility. In addition, the site shall be maintained clear of combustible materials within 20 feet of structures, except as necessary for Station operation. The certificate holder shall ensure that trees and other vegetation do not grow to become a fire hazard. Condition E.2: The certificate holder shall design and construct all facility structures and buildings in compliance with the setback requirements of Umatilla County Development Ordinance Section 152.063(B), (C), (E) in effect as of April 03, 2014. Condition E.3: The certificate holder shall consult with the Oregon Department of Fish and Wildlife and the local Soil and Water Conservation District for any minor drainage improvements necessary to ensure effective drainage on surrounding agricultural lands. Condition E.4: To reduce the visual impacts of the facility, the certificate holder shall:

(a) Not allow any advertising to be used on any part of the facility; (b) Use only those signs required for facility safety, required by law or otherwise required by this site certificate, except that the certificate holder may erect directional signage for deliveries and site circulation; (c) Design signs in accordance with Umatilla County design requirements for signs as described in UCDC Section 152.545; and (d) Maintain any signs allowed under this condition in good repair.

Condition E.5: Prior to beginning construction, the certificate holder shall obtain all required land use approvals from Umatilla county as listed in the letter from the Umatilla County Board of Commissioners dated May 14, 2015, and shall submit all associated applications and pay all associated application fees. F. Protected Areas


No conditions required G. Retirement and Financial Assurance Condition G.1 [OAR 345-027-0020(9)]: The certificate holder shall retire the facility if the certificate holder permanently ceases construction or operation of the facility. The certificate holder shall retire the facility according to a final retirement plan approved by the Council, as described in OAR 345-027-0110. The certificate holder shall pay the actual cost to restore the site to a useful, non-hazardous condition at the time of retirement, notwithstanding the Council’s approval in the site certificate of an estimated amount required to restore the site. Condition G.2 [OAR 345-027-0020(16)]: If the Council finds that the certificate holder has permanently ceased construction or operation of the facility without retiring the facility according to a final retirement plan approved by the Council, as described in OAR 345-027-0110, the Council shall notify the certificate holder and request that the certificate holder submit a proposed final retirement plan to the department within a reasonable time not to exceed 90 days. If the certificate holder does not submit a proposed final retirement plan by the specified date, the Council may direct the department to prepare a proposed final retirement plan for the Council’s approval. Upon the Council’s approval of the final retirement plan, the Council may draw on the bond or letter of credit described in OAR 345-027-0020(8), and Condition G.4, to restore the site to a useful, non-hazardous condition according to the final retirement plan, in addition to any penalties the Council may impose under OAR Chapter 345, Division 29. If the amount of the bond or letter of credit is insufficient to pay the actual cost of retirement, the certificate holder shall pay any additional cost necessary to restore the site to a useful, non-hazardous condition. After completion of site restoration, the Council shall issue an order to terminate the site certificate if the Council finds that the facility has been retired according to the approved final retirement plan. Condition G.3 [OAR 345-027-0020(8)]: Before beginning construction of the facility, the certificate holder shall submit to the State of Oregon, through the Council, a bond or letter of credit in a form and amount satisfactory to the Council to restore the site to a useful, non-hazardous condition. The certificate holder shall maintain a bond or letter of credit in effect at all times until the facility has been retired. The Council may specify different amounts for the bond or letter of credit during construction and during operation of the facility. Condition G.4: Before beginning construction of the facility, the certificate holder shall submit to the State of Oregon, through the Council a bond or letter of credit naming the State of Oregon, acting by and through the Council, as beneficiary or payee. The initial bond or letter of credit amount for the facility is $4.560 million, without a zero liquid discharge system or $4.61 million with a zero liquid discharge system, depending upon the final design configuration, to be adjusted to the date of issuance, and adjusted on an annual basis thereafter, as described in sub-paragraph (b) of this condition:


(a) The certificate holder may adjust the amount of the initial bond or letter of credit based on the final design configuration of the facility. Any revision to the restoration costs should be adjusted to the date of issuance as described in (b) and subject to review and approval by the department. (b) The certificate holder shall adjust the amount of the bond or letter of credit using the following calculation:

i. Adjust the amount of the bond or letter of credit (expressed in second quarter 2013 dollars) to present value, using the U.S. Gross Domestic Product Implicit Price Deflator, Chain-Weight, as published in the Oregon Department of Administrative Services’ “Oregon Economic and Revenue Forecast” or by any successor agency and using the second quarter 2013 index value and the quarterly index value for the date of issuance of the new bond or letter of credit. If at any time the index is no longer published, the Council shall select a comparable calculation to adjust second quarter 2013dollars to present value. ii. Round the result total to the nearest $1,000 to determine the financial assurance amount.

(a) The certificate holder shall use an issuer of the bond or letter of credit approved by the Council (b) The certificate holder shall use a form of bond or letter of credit approved by the Council. The certificate holder shall describe the status of the bond or letter of credit in the annual report submitted to the Council under OAR 345-026-0080. The bond or letter of credit shall not be subject to revocation or reduction before retirement of the facility site.

H. Fish and Wildlife Condition H.1: Before beginning construction, the certificate holder shall provide the department and Oregon Department of Fish and Wildlife (ODFW) a detailed map of the facility site, showing all project components, and a table showing the acres of temporary habitat impacted by habitat category and subtype and the acres of permanent habitat impacted by habitat category and subtype. The maps of the facility site shall indicate the habitat categories of all areas that will be affected during construction. In classifying the affected habitat into habitat categories, the certificate holder shall consult with ODFW. The certificate holder shall not begin ground disturbance in an affected area until the habitat assessment has been approved by the department, in consultation with ODFW. The certificate holder shall not construct any facility components within areas of Category 1 habitat and shall avoid temporary disturbance of Category 1 habitat. Condition H.2: Prior to commencement of construction, following completion of condition H.1, the certificate holder shall consult with the Oregon Department of Fish and Wildlife (ODFW) to determine the final acreage of habitat mitigation required. Mitigation shall be provided in accordance with the final acreage determinations provided in response to Condition H.1 and consistent with a Habitat Mitigation Plan, if determined necessary, approved by the department and ODFW


(a) A final Habitat Mitigation Plan, if determined necessary, and ODFW’s concurrence of that plan shall be submitted to the department no less than 30 days prior to the beginning of construction. (b) The final Habitat Mitigation Plan, if necessary, may be amended from time to time by agreement of the certificate holder and the Oregon Energy Facility Siting Council. Such amendments may be made without amendment of the site certificate. The Council authorizes the department to agree to amendments to this plan. The department shall notify the Council of the Final Habitat Mitigation Plan and all amendments to the plan. The Council retains the authority to approve, reject or modify any amendments of this plan agreed to by the department.

Condition H.3: The certificate holder shall restore all areas temporarily impacted due to construction to pre-construction condition or better after construction has been completed. Condition H.4: Before beginning construction, the certificate holder shall prepare a final Project Restoration Monitoring Plan and Project Biological Monitoring Plan in consultation with the department and Oregon Department of Fish and Wildlife (ODFW).

(a) The final plans and ODFW’s concurrence must be submitted to the department no less than 30 days prior to the beginning of construction. The certificate holder shall implement the requirements of the approved plan during all phases of construction and operation of the facility, as applicable. (b) The plans may be amended from time to time by agreement of the certificate holder and the Oregon Energy Facility Siting Council. Such amendments may be made without amendment to the site certificate. The Council authorizes the department to agree to amendments of this plan; however, the Council retains the authority to approve, reject or modify any amendment of this plan agreed to by the department.

Condition H.5: Prior to commencing construction, all project personnel shall attend an environmental training session conducted by the certificate holder. The training shall include, but not be limited to, the following topics: identification of approved project boundaries and access roads; identification of sensitive wetland and waterbody resources; identification of special status-plant and wildlife species; techniques regarding avoidance and minimization measures the certificate holder will implement; the role of the onsite biologist; the notification process to be followed if new sensitive resources are identified. Condition H.6: The certificate holder shall design, construct, maintain and operate the reconductored transmission line following the current Avian Power Line Interaction Committee guidelines to minimize risk of avian mortality. Condition H.7: The certificate holder shall restrict vehicular travel along the transmission line and pipeline to the right of way (ROW) and other established areas within the construction, access or maintenance easements. Additionally, the certificate holder shall impose speed limits


during construction for access roads to reduce dust emissions, maintain safety and protect wildlife. Condition H.8: During all years in which construction occurs, if construction related activities occur during the raptor breeding season (February 1 through August 31), the certificate holder must conduct pre-construction surveys within 0.5 miles of all proposed project features for Ferruginous Hawk nests, and within 0.25 miles for all other raptor species nests, including burrowing owl burrows. If active nests are located, the certificate holder shall notify the department and the Oregon Department of Fish and Wildlife (ODFW), and construction-related activities must be restricted within 0.5 miles of Ferruginous Hawk nests and 0.25 miles of all other raptor nests until the nests have failed or chicks have fledged. A biologist shall monitor the status of the active nests daily during nearby active construction and document potential adverse interactions with the project. Condition H.9: During all years in which construction occurs, if construction-related activities occur during the migratory bird breeding season (March 15 through April 15), pre-construction surveys must be conducted within 20 feet of all proposed project features for nests of all native, non-raptor species. Pre-construction nest surveys for non-raptors shall be valid for only two weeks. If active nests are located, the certificate holder must notify the department and consult with Oregon Department of Fish and Wildlife (ODFW) to determine appropriate avoidance and/or mitigation measures necessary. A biologist must monitor the status of active nests daily during nearby active construction and document potential adverse interactions with the project. Condition H.10: If a California myotis roost is observed during other biological surveys, the certificate holder must notify the department and consult with Oregon Department of Fish and Wildlife (ODFW) to determine any appropriate avoidance or mitigation measures necessary. Condition H.11: If construction is to occur during important times (breeding season for Ferrunginous Hawks and other raptors or migration for all native non-raptors), or at close distances to environmentally sensitive areas (nests of the above), prior to any construction activities, the certificate holder must consult with Oregon Department of Fish and Wildlife (ODFW) to determine appropriate measures to take and guidance on seasonal and/or spatial restrictions to avoid or minimize impact. Condition H.12: The certificate holder shall provide the department and the Oregon Department of Fish and Wildlife (ODFW) with a written summary of all results of biological preconstruction surveys, including nest surveys, within 10 days of survey completion. Condition H.13: The certificate holder shall clearly demarcate boundaries of environmentally sensitive areas (nests referred to in Condition H.11) during construction to increase visibility to construction crews.


I. Threatened and Endangered Species Condition I.1: The certificate holder shall establish streamside management zones within 50 feet of both sides of intermittent and perennial streams and along margins of bodies of open water where removal of low-lying vegetation is minimized. Condition I.2: Prior to beginning construction, the site certificate holder shall survey for northern sagebrush lizard in areas of sagebrush and other shrubby habitat to be impacted by ground disturbing activities. If northern sagebrush lizards are discovered, the site certificate holder shall contact and consult Oregon Department of Fish and Wildlife (ODFW) and the department to determine appropriate measures to avoid or minimize adverse effects, including spatial restrictions. Construction activities shall be restricted until consultation with ODFW has occurred. Condition I.3: Prior to beginning construction, the site certificate holder shall examine any structures within the construction corridor for bat roosts. If any bat roosts are discovered, construction shall be restricted and the site certificate holder shall consult with Oregon Department of Fish and Wildlife and the department to determine appropriate measures to avoid and/or minimize adverse effects. Condition I.4: Prior to beginning construction, the site certificate holder shall conduct pre-construction surveys for Washington Ground Squirrels (WGS) in any areas with suitable habitat, using a qualified professional biologist that has experience in detection of WGS. The certificate holder shall provide written reports of the surveys to the department and the Oregon Department of Fish and Wildlife (ODFW). If any project components that require ground disturbance are located within 1,000 feet of potential WGS habitat (excluding tilled agricultural land or developed areas as it is not suitable for WGS foraging or burrowing), the site certificate holder shall conduct transect surveys to determine if squirrels are present. If WGS are present within the 1,000 foot-buffer, the certificate holder shall identify the boundaries of the Category 1 WGS habitat in the report to the department and ODFW and construction shall be restricted until appropriate measures are determined, which shall include but not be limited to WGS habitat marking with high visibility flagging or makers. Condition I.5: The site certificate holder shall conduct pre-construction surveys for Robinson’s onion and Laurence’s milkvetch prior to conducting any ground-disturbing activities in areas with suitable habitat. If any plants are discovered, the site certificate holder shall consult with the Oregon Department of Agriculture and the department for guidance on appropriate measures to avoid or minimize adverse effects. J. Scenic Resources


Condition J.1: The certificate holder shall paint or otherwise finish the facility structures in neutral colors with a low reflectivity finish to provide visual integration with the surrounding landscape. Condition J.2: The certificate holder shall not use exterior nighttime lighting except:

(1) The minimum exhaust stack lighting required or recommended by the Federal Aviation Administration; (2) Safety and security lighting at the Station and step-up substation, provided that such lighting is shielded or downward directed to reduce offsite glare; and (3) Minimum lighting necessary for repairs or emergencies.

Condition J.3: For the new poles required for the transmission infrastructure, the certificate holder shall use poles similar in height and appearance to the existing poles within the transmission line right-of-way. K. Historic, Cultural, and Archaeological Resources Condition K.1: Prior to construction, the certificate holder shall contact and coordinate with each owner/operator of the identified NRHP eligible historic period resources to obtain any necessary easements or approvals. The certificate holder shall ensure that a qualified archaeologist, as defined in OAR 736-051-0070, instructs construction personnel in the identification and avoidance of accidental damage to identified resources. Records of such training shall be maintained at the administration/control building and made available to authorized representatives of the department upon request. Condition K.2: Before beginning construction, the certificate holder shall provide to the department a map showing the final design locations of all components of the facility, the areas that would be temporarily disturbed during construction and the areas that were surveyed in 2013. Condition K.3: The certificate holder shall cease all ground disturbing activities in the immediate area if any archaeological or cultural resources are found during construction of the facility. The certificate holder shall flag or mark the area and shall notify the department and the Oregon State Historic Preservation Office (SHPO) of the find. A qualified archaeologist shall evaluate the significance of the find. If SHPO determines that the resource is significant, the certificate holder shall make recommendations to the Council for mitigation, including avoidance, field documentation, and data recovery, in consultation with the department, SHPO, interested tribes and other impacted parties. The certificate holder shall not restart work in the affected area until the certificate holder has demonstrated to the Council that it has complied with the archaeological resource protection regulations. Condition K.4: The certificate holder must employ qualified personnel to conduct field investigations of the section of the project’s natural gas pipeline right of way not previously


surveyed, prior to construction in that area. The certificate holder shall provide a written report of the field investigation to the department and Oregon State Historic Preservation Office (SHPO). If potentially significant historic, cultural or archaeological sites are found during the field investigations, the certificate holder must instruct all construction personnel to avoid the identified sites and must implement appropriate measures to protect the site, including the measures described in Condition K.3. L. Recreation Areas No conditions required M. Public Services Condition M.1: During construction of the facility, the certificate holder shall implement the following measures:

(a) The certificate holder shall mount a right-turn prohibition sign with a supplemental “TRUCKS” rider plaque facing the westbound (driveway) approach; (b) The certificate holder shall mount a left-turn prohibition sign with a supplemental “TRUCKS” rider plaque facing the southbound (Westland Road) approach; (c) Prior to truck delivery of any oversize loads, a formal routing and delivery plan shall be developed by the certificate holder in conjunction with the department, in consultation with the Oregon Department of Transportation and Umatilla County; and (d) The certificate holder shall locate and maintain landscaping, and signing around aboveground utilities so that adequate sight distance is maintained.

Condition M.2: Before beginning construction of any new road approaches or utility crossings, the certificate holder shall obtain all required permits from Umatilla County. Condition M.3: Upon completion of construction, the certificate holder shall restore public roads to pre-construction conditions or better to the satisfaction of the Umatilla County Public Works Department. Condition M.4: Prior to beginning construction, the certificate holder shall enter into a development agreement with Umatilla County to provide roadway and access improvements recommended by the Umatilla County Public Works Director in conjunction with construction and operation of the energy facility and to pay the certificate holder’s proportionate share of Umatilla County’s costs of implementing measures to address fogging and icing on County roads potentially impacted by the operation of the energy facility. Condition M.5. Before beginning construction, the certificate holder shall submit Notice(s) of Proposed Construction or Alteration to the Federal Aviation Administration and the Oregon Department of Aviation. The certificate holder shall promptly notify the department of the responses from the FAA and the Oregon Department of Aviation.


Condition M.6: The site certificate holder shall fence the Station site and include a monitored gated entrance, security lighting and a closed circuit television camera shall be installed. Condition M.7: Prior to beginning construction, the certificate holder shall develop and implement a fire protection system, which shall include a fire water system, portable fire extinguishers, a smoke detection system and a carbon dioxide extinguishing system provided with the combustion turbine generators (CTG). Condition M.8: Prior to beginning operation of the facility, the certificate holder shall provide a site plan to the Hermiston Fire & Emergency Services District. The certificate holder shall indicate the actual location of all facility structures on the site plan. During operation, the certificate holder shall ensure that appropriate fire protection agency personnel have an up-to-date list of the names and telephone numbers of facility personnel available to respond on a 24-hour basis in case of an emergency on the facility site. N. Waste Minimization Condition N.1: The certificate holder shall implement a waste management plan during construction that includes but is not limited to the following measures:

(a) Recycling steel, other metal scrap; and paper and cardboard waste; (b) Recycling wood waste to the maximum extent possible; (c) Collecting nonrecyclable waste for transport to a permitted solid waste disposal facility by a licensed waste hauler; and (d) Segregating all hazardous waste such as used oil, oily rags and oil-absorbent materials, mercury-containing lights and lead-acid and nickel-cadmium batteries for recycling or disposal by a licensed firm qualified in the proper recycling or disposal of hazardous waste.

Condition N.2: The site certificate holder shall implement a waste management plan during operation that includes but is not limited to the following measures:

(a) Training employees to minimize and recycle solid waste; (b) Recycling paper products, metals, glass, and plastics; (c) Recycling used oil and hydraulic fluid; (d) Collecting nonrecyclable waste for transport to a permitted solid waste disposal facility by a licensed waste hauler; and (e) Segregating all hazardous waste such as used oil, oily rags and oil absorbent materials, mercury‐containing lights and lead‐acid and nickel‐cadmium batteries for recycling or disposal by a licensed firm qualified in the proper recycling or disposal of hazardous waste.

Condition N.3: The certificate holder shall provide portable toilets for on-site sewage handling during construction and shall ensure that they are pumped and cleaned regularly by a licensed contractor who is qualified to pump and clean portable toilet facilities.


Condition N.4: The certificate holder shall use hazardous materials in a manner that protects public health, safety and the environment and shall comply with all applicable local, state, and federal environmental laws and regulations. Condition N.5: The certificate holder shall collect all hazardous solid waste, including oily waste, used filters, and oily rags or absorbents in sealable drums. The certificate holder shall collect used oils, solvents, and cleaning materials in tanks or barrels supplied by material vendors. Condition N.6: The certificate holder shall store hazardous chemicals in aboveground containers or tanks located within secondary containment areas. Other chemicals and lubricants needed for facility maintenance and operation shall be stored in the facility buildings O. Transmission Line Condition O.1 [OAR 345-027-0023(4)]:

(a) The certificate holder shall design, construct and operate the transmission line in accordance with the requirements of the National Electrical Safety Code (American National Standards Institute, Section C2, 1997 Edition); and (b) The certificate holder shall develop and implement a program that provides reasonable assurance that all fences, gates, cattle guards, trailers, or other objects or structures of a permanent nature that could become inadvertently charged with electricity are grounded or bonded throughout the life of the line.

P. Noise Condition P.1: Prior to beginning construction of the facility, the certificate holder shall re-run the noise model using the noise characteristics of the equipment that has been selected to ensure compliance with the noise regulations. Condition P.2: Upon written notification from the department, the certificate holder shall monitor and record the actual statistical noise levels during operations to verify that the certificate holder is operating the facility in compliance with the noise control regulations. The monitoring plan must be reviewed and approved by the department prior to implementation. The cost of such monitoring, if required, will be borne by the certificate holder. Condition P.3: During operation, the certificate holder shall maintain a complaint response system to address noise complaints. The certificate holder shall notify the department within 15 days of receiving a complaint about noise from the facility. The notification should include the date the complaint was received, the nature of the complaint, the complainant’s contact information, the location of the affected property, and any actions taken, or planned to be taken, by the certificate holder to address the complaint.


Condition P.4: To reduce construction noise impacts at nearby residences, the certificate holder shall:

(a) Confine the noisiest operation of heavy construction equipment to the daylight hours to the extent practicable; (b) Require contractors to install and maintain exhaust mufflers on all combustion engine-powered equipment; and (c) Establish a complaint response system at the construction manager’s office to address noise complaints. Records of noise complaints during construction must be made available to authorized representatives of the Department of Energy upon request.

Q. Removal-Fill No conditions required R. Ground Water Condition R.1: The certificate holder shall enter into a contract with the owners of the Regional Water System to ensure completion of system improvements needed in order to provide water to the facility. Condition R.2: During construction and operation of the facility, the certificate holder shall limit use of water obtained from the Port of Umatilla to no more than 2,000 gallons per minute and to amounts found to be within the scope of the water rights held by the Port. S. Carbon Dioxide Emissions Condition S.1: Before beginning construction, the certificate holder shall notify the department in writing of its final selection of an equipment vendor and shall submit a written design information report to the department sufficient to verify the facility’s designed new and clean heat rate and its nominal electric generating capacity at average annual site conditions. The certificate holder shall include the proposed total number of hours of operation, subject to the limitation that the total annual average number of hours of operation per year is not more than 6,600 hours. At the time the certificate holder submits the information required by this condition, the certificate holder shall also specify its election of the method used to measure or calculate carbon dioxide emissions. The election shall apply for the initial reporting required pursuant to Condition S.8 or S.9, as applicable, and to each reporting period required pursuant to Condition S.10. Condition S.2: For the purposes of this site certificate, “monetary path payment requirement” means the amount of offset funds determined pursuant to OAR 345-024-0590 and -600 and the amount of the selection and contracting funds that the certificate holder must disburse to the Climate Trust, as the qualified organization, pursuant to OAR 345-024-0710 and the site


certificate. The certificate holder shall calculate the monetary path payment using an offset fund rate of $1.27 per ton of carbon dioxide in 2015 dollars as follows:

(a) The certificate holder shall calculate the 2015 dollars using the index described in subsection (c) below. (b) The certificate holder shall increase the amount of the bond or letter of credit described in Condition S.6 by the percentage increase in the index. The certificate holder shall index the funds from the date of the Council’s approval of the site certificate to the date of disbursement of funds to The Climate Trust (c) The calculation of 2015 dollars shall be made using the same index described in Condition G.4. The amount of the bond or letter of credit shall increase annually by the percentage increase in the Index and shall be pro-rated within the year to the date of disbursement to The Climate Trust from the date of Council approval of the site certificate. If at any time the Index is no longer published, the Council shall select a comparable calculation of 2015 dollars without an amendment of the site certificate.

Condition S.3: To calculate the initial monetary path payment requirement, the certificate holder shall use the contracted design parameters for capacities and heat rates submitted under Condition S.1. Condition S.4: The certificate holder shall submit all monetary path payment requirement calculations to the department for verification in a timely manner before submitting a bond or letter of credit for Council approval, before entering into a Memorandum of Understanding with The Climate Trust as required by Condition S.5, and before making disbursement to The Climate Trust. The net carbon dioxide emissions rate of the facility shall not exceed 0.675 pounds of carbon dioxide per kilowatt-hour of net electric power output measured on a new and clean basis, as the department may modify such basis pursuant to Condition S.8(c). Condition S.5: Before beginning construction of the facility, the certificate holder must enter into a Memorandum of Understanding (MOU) with The Climate Trust that establishes the disbursement mechanism to transfer selection and contracting funds and offset funds to The Climate Trust.

(a) The MOU must be substantially in the form of Appendix E to the final order on the Application. At the request of the certificate holder, the Council may approve a different form of a bond or letter of credit and concurrent MOU without an amendment of the site certificate. (b) Either the certificate holder or The Climate Trust may submit to the Council for the Council’s resolution any dispute between the certificate holder and The Climate Trust concerning the terms of the bond or letter of credit, the MOU or any other issues related to the monetary path payment requirement. The Council’s decision shall be binding on all parties.


Condition S.6: Before beginning construction of the facility, the certificate holder shall submit to the Climate Trust a bond or letter of credit in the amount of the offset funds of the monetary path payment requirement as determined under Condition S.2.

(a) The certificate holder shall use a form of bond or letter of credit that is substantially in the form of Attachment B to the MOU described in Condition S.5. At the request of the certificate holder, the Council may approve a different form of a bond or letter of credit without an amendment of the site certificate. (b) The certificate holder shall use an issuer of the bond or letter of credit approved by the Council (c)The certificate holder shall maintain the bond or letter of credit in effect until the certificate holder has disbursed the full amount of the offset funds to The Climate Trust. The certificate holder may reduce the amount of the bond or letter of credit commensurate with payments it makes to The Climate Trust. The bond or letter of credit must not be subject to revocation before disbursement of the full amount of the offset funds.

Condition S.7: The certificate holder shall disburse to The Climate Trust offset funds and selection and contracting funds when requested by The Climate Trust in accordance with Conditions S.9 and S.10 and the following requirements:

(a) The certificate holder shall disburse selection and contracting funds to The Climate Trust before beginning construction and as appropriate when additional offset funds are required under Conditions S.9 and S.10 (b) Upon notice pursuant to subsection (c), The Climate Trust may request from the issuer of the bond or letter of credit the full amount of all offset funds available or it may request partial payment of offset funds at its sole discretion. Notwithstanding the specific amount of any contract to implement an offset project, The Climate Trust may request up to the full amount of offset funds the certificate holder is required to provide to meet the monetary path payment requirement. (c) The Climate Trust may request disbursement of offset funds pursuant to paragraph (b) by providing notice to the issuer of the bond or letter of credit that The Climate Trust has executed a bond or letter of intent to acquire an offset project. The certificate holder shall require that the issuer of the bond or letter of credit disburse offset funds to The Climate Trust within three business days of a request by The Climate Trust for the offset funds in accordance with the terms of the bond or letter of credit.

Condition S.8: Except as provided in Condition S.9, within the first 12 months of commercial operation of the facility, the certificate holder shall conduct a 100-hour test (Year One Test). Tests performed for purposes of the certificate holder’s commercial acceptance of the facility may suffice to satisfy this condition in lieu of testing after beginning commercial operation. (a) The certificate holder shall conduct the Year One Testto determine the actual heat rate (Year One Heat Rate) and the net electric power output (Year One Capacity) on a new and clean basis, without degradation, for each generating unit, with the results adjusted for the average annual site condition for temperature, barometric pressure,


relative humidity, and operating hours per year. The certificate holder shall use a rate of 117 pounds of carbon dioxide per million Btu of natural gas fuel. (b) The certificate holder shall notify the department at least 60 days before conducting the tests required in subsection (a) unless the certificate holder and the department have mutually agreed that less notice will suffice. (c) Before conducting the tests required in subsection (a), the certificate holder shall, in a timely manner, provide to the department for its approval a copy of the protocol for conducting the tests. The department may approve modified parameters for testing on a new and clean basis pursuant to OAR 345-024-0590(1) without a site certificate amendment. The certificate holder shall not conduct the tests required in subsections (a) until the department has approved the testing protocols. (d) Within 60 days after completing the Year One Tests, the certificate holder shall provide to the Council reports of the results of the Year One Tests. Condition S.9: If the certificate holder has elected to calculate excess carbon dioxide emissions based on direct measurements then the Year One Test described in Condition S.8 is not required.

(a) If the Year One Test is not performed, the certificate holder must report carbon dioxide emissions using actual measured emissions as reported to the Department of Environmental Quality or the U.S. Environmental Protection Agency for all subsequent five year periods over the life of the facility and may not change its election to report based on new and clean heat rate in any subsequent five year period. (b) If the Year One Test is not performed pursuant to Condition S.8, then the certificate holder shall report the facility’s net kWh generation and actual measured carbon dioxide emissions for the 12 month period following start of commercial operation. The certificate holder shall report the net kWh generation and actual carbon dioxide emissions for this period to the department within two months of the end of the first 12 month period. The certificate holder shall use the net kWh generation and measured carbon dioxide emissions to perform the calculations to determine if a supplemental monetary path payment is needed as set forth in Condition S.10. The certificate holder shall submit these calculations to the department for verification.

Condition S.10: Based on the data from the Year One Tests described in Condition S.8, or actual measured emissions described in Condition S.9, the certificate holder shall calculate an adjusted monetary path payment. The certificate holder shall submit its calculations to the department for verification. If the adjusted amount exceeds the amount of the bond or letter of credit provided according to Condition S.7 before beginning construction, the certificate holder shall fully disburse the excess amount directly to The Climate Trust within 30 days of the department’s verification of the calculations.

(a) The certificate holder shall include the appropriate calculations of the adjusted monetary path payment with its reports of the results of the Year One Tests required under Condition S.8 or actual measured emissions required under Condition S.9.


(b) For calculating the adjusted monetary path payment, the certificate holder shall use an offset fund rate of $1.27 per ton of carbon dioxide (in 2015 dollars) and shall calculate contracting and selecting funds based on 10 percent of the first $500,000 in offset funds and 4.286 percent of any offset funds in excess of $500,000 (in 2015 dollars). (c) In no case shall the certificate holder diminish the value of the bond or letter of credit it provided before beginning construction or receive a refund from The Climate Trust based on the calculations made using the results of the Year One Test required under Condition S.8 or actual measured emissions required under Condition S.9.

Condition S.11: Every 5 years after commencing commercial operation of the facility (5-year reporting period), the certificate holder shall report to the Council the information required by either subsection (a) or (b), below. The certificate holder shall submit five-year reports to the Council within 30 days of the anniversary date of beginning commercial operation of the facility.

a. If the certificate holder has elected to calculate any excess emissions using annual average hours of operation and new and clean heat rates, the certificate holder shall report the annual average hours of operation of each generating unit within the facility during that five-year reporting period. The certificate holder shall use the Year One Capacity and Year One Heat Rate that it reports for the corresponding generating units pursuant to Condition S.8 to calculate whether it owes supplemental monetary path payments. b. If the certificate holder has elected to calculate any excess emissions using actual or measured carbon dioxide emissions reported to either the Oregon Department of Environmental Quality or the U.S. Environmental Protection Agency pursuant to a mandatory carbon dioxide reporting requirement, the certificate holder shall submit to the Council the carbon dioxide reporting data and net kWh generation for that five-year reporting period and shall use that data to determine whether it owes supplemental monetary path payments. (c) If the department determines that the facility exceeds the projected net total carbon dioxide emissions calculated pursuant to Condition S.3 and either Condition S.8 or S.9, prorated for five years, during any five-year reporting period, the certificate holder shall offset excess emissions for the specific reporting period according to subsection (c)(1) and shall offset the estimated future excess emissions according to subsection (c)(2). The certificate holder shall offset excess emissions using the monetary path described under Condition S.2. The certificate holder shall disburse funds to The Climate Trust within 30 days after notification by the department of the amount that the certificate holder owes.

(1) In determining the excess carbon dioxide emissions that the certificate holder must offset for a five-year period, the department shall apply OAR 345-024-0600(4)(a), unless the certificate holder has elected under OAR 345-024-0590(5) to utilize actual or measured carbon dioxide emissions as reported to either the Oregon Department of Environmental Quality or the U.S. Environmental Protection Agency pursuant to a mandatory carbon dioxide reporting requirement. The certificate holder shall pay for the excess emissions at $1.27 per ton of carbon dioxide emissions (in 2015 dollars). The


department shall notify the certificate holder and The Climate Trust of the amount of the payment required, using the monetary path, to offset excess emissions. (2) The department shall calculate estimated future excess emissions and notify the certificate holder of the amount of payment required, using the monetary path, to offset them. To estimate excess emissions for the remaining period of the deemed 30-year life of the facility, the department shall use the parameters specified in OAR 345 024-0600(4)(b). The certificate holder shall pay for the estimated excess emissions at $1.27 per ton of carbon dioxide (in 2015 dollars). The department shall notify the certificate holder of the amount of payment required, using the monetary path, to offset future excess emissions.

Condition S.12: After the certificate holder has complied with the conditions relating to the carbon dioxide standard before beginning construction, incremental increases in capacity and heat rate that otherwise fall within the limits specified in OAR 345-027-0050(2) do not require an amendment of the site certificate if the certificate holder complies substantially with Conditions S.1 through S.11, except as modified below, and if:

(a) The department or the Council determines, as described in OAR 345-027-0050(5), that the proposed change in the facility does not otherwise require an amendment; and (b) The certificate holder complies with the appropriate carbon dioxide emissions standard and monetary offset rate in effect at the time the department or the Council makes its determination under this condition.

Appendix BPerennial Wind Chaser Station

Revegetation and Noxious Weed Control Plan

Perennial Wind Chaser Station Final Order

Perennial Wind Chaser Station

Revegetation and Noxious Weed Control Plan

October 2014

Prepared for: Perennial-WindChaser LLC

300 Madison Avenue New York, NY 10017

Prepared by: Ecology and Environment, Inc.

333 SW Fifth Avenue, Suite 600 Portland, Oregon 97204

©2014 Ecology and Environment, Inc.

Application for Site Certificate i Appendix P-2 Perennial Wind Chaser Station 2014

TABLE OF CONTENTS

1 INTRODUCTION ............................................................................................................. 1

2 SITE DESCRIPTION ....................................................................................................... 2

3 SCHEDULE ....................................................................................................................... 4

4 RESTORATION AND REVEGETATION METHODS .............................................. 5

4.1 Erosion Control and Topsoil Management ............................................................. 5

4.2 Noxious and Invasive Weed Control ...................................................................... 6

4.3 Re-seeding Methods ................................................................................................ 8

5 MONITORING PROGRAM ......................................................................................... 11

6 AMENDMENT OF PLAN ............................................................................................. 12

7 REFERENCES ................................................................................................................ 13

List of Tables

Table Page

Table 1 Permanent and Temporary Disturbances (in acres) to Each Habitat Type and Habitat Mitigation Category ............................................................ 3

Table 2 Designated Noxious Weeds and Other Invasive Species Observed During 2013 Field Surveys .............................................................................. 7

Table 3 Seed Mix for Temporarily Disturbed Project Areas ............................................... 10

Application for Site Certificate 1 Appendix P-2 Perennial Wind Chaser Station 2014

1 INTRODUCTION

This Revegetation and Noxious Weed Control Plan outlines the goals, methods, and standards for soil restoration and revegetation of areas expected to be temporarily disturbed during the construction, operation, and maintenance of the Perennial Wind Chaser Station project (Project).1 In addition, this plan describes noxious and invasive weed control measures that will be implemented in all areas of the Project during and after construction, including both temporary disturbance areas and permanent aboveground facilities. Perennial-WindChaser LLC (Perennial) is not required to revegetate areas with permanent Project facilities, such as the power generating facility (Station) site, step-up substation, or any other permanent aboveground Project components; however, noxious weed control and erosion control will be implemented in all areas of the Project including within the transmission pipeline and natural gas pipeline rights-of-way ([ROW] Project area). The purpose of these efforts is to restore the soil and vegetation in temporarily disturbed Project areas to pre-disturbance condition or better.

The goal of this plan is to provide the methods and standards to:

1. Avoid or minimize impacts on the native habitats and vegetation communities presentin the Project area;

2. Avoid or minimize impacts on native soils through erosion and loss or degradation oftopsoil;

3. Avoid or control the introduction or spread of noxious weeds in or immediatelyadjacent to the Project area (including along Project access roads);

4. Re-establish native plant communities in non-agricultural areas of the Project withinfive years of completion of the construction of the Project; and

5. Re-establish the conditions for pre-Project farming practices in agricultural areas of theProject within one year of completion of the construction of the Project.

This plan has been developed in consultation with the Oregon Department of Fish and Wildlife (ODFW) and the Umatilla County Weed Control Board. Additionally, this plan utilizes restoration and revegetation methods and standards developed by other energy projects in this region of Oregon that have been approved by the Oregon Energy Facility Siting Council (EFSC 2006, 2011). All seed mixes, planting methods, noxious weed control treatments, topsoil conservation methods, and erosion control measures will only be

1 This plan is incorporated by reference in the Project’s site certificate application and is not intended to be a “stand-alone” document. This plan does not contain all mitigation measures required of Perennial.


implemented with the approval of the ODFW and the individual landowners. Perennial will implement and maintain sediment and erosion control measures during construction and after construction until the risk of erosion has been eliminated and areas of disturbance are successfully restored. This plan also provides a brief summary of post-construction monitoring procedures to evaluate the success of the measures described in this plan. For a complete discussion of Perennial’s monitoring procedures, refer to the Project Restoration Monitoring Plan (Exhibit P, Appendix P-3).

The Project area is composed primarily of active agriculture cropland, disturbed or weedy agricultural areas, and limited areas of shrub-steppe rangelands of varying quality (>2 percent in the natural gas pipeline ROW). Direct and indirect impacts on vegetation and wildlife habitat at aboveground facilities will be permanent in nature and will result from the removal of vegetation and wildlife habitat through excavation and grading activities. Other than noxious weed control measures and erosion and sediment control measures, revegetation will not be conducted at these sites.

In general, the intensity of construction impacts on vegetation and habitat in temporary disturbance areas will be low and will often be limited to the flattening of vegetation by rubber-tired vehicles. In some instances, the intensity of impacts in temporary disturbance areas will be higher and will require the removal of topsoil and vegetation through grading, excavation, or drilling activities. Perennial will implement revegetation measures in all temporary construction disturbance areas where soil is disturbed. Such soil disturbance sites will require active measures to restore vegetation cover in a timely manner, control erosion, and prevent the establishment and spread of noxious weeds. Construction crews will segregate topsoil from subsoil for pipeline trenching in agricultural areas and replace this topsoil during the restoration phase of the Project.

Perennial will implement a number of best management practices designed to control sediment and minimize erosion, particularly in the vicinity of Project drainages and waterbodies. These erosion and sediment control practices will be maintained for the duration of the construction restoration phases of the Project, but may be maintained longer if a high risk of erosion still exists. Erosion and sediment control measures are described in the Erosion and Sediment Control Plan, located in Exhibit I, Appendix I-2.

2 SITE DESCRIPTION

The Station will be located on private land in Umatilla County, Oregon, approximately 4 miles southwest of the city of Hermiston, Oregon, near the intersection of Interstate Highways 82 and 84. In addition to the Station, the Project includes a 50-foot-wide natural gas pipeline ROW that will extend 4.63 miles south of the Station to the existing Gas Transmission Northwest pipeline and the construction of a new metering facility adjacent to the existing


metering facility. The natural gas pipeline ROW will be located almost entirely within the existing ROW of the lateral that services the Hermiston Generating Plant. In addition, the Project includes reconductoring an existing12-mile transmission line that will terminate at a new 3-acre step-up substation, as well installing an approximately 477-foot-long underground transmission cable into the existing Bonneville Power Administration McNary Substation. The transmission line reconductoring will not result in permanent ground disturbance.

Permanent ground disturbance will primarily occur at 1) the Station site, 2) the step-up substation, 3) the natural gas pipeline metering facility, and 4) the fenced riser area. Approximately 23.48 acres of category 5 and 6 habitat (developed areas and weedy grasslands at the Station site and the step-up substation) will be permanently removed as a result of the Project. These areas will not be revegetated after construction, although appropriate noxious weed control measures will be implemented in areas that have non-impervious surfaces.

Temporary ground disturbance will primarily occur at 1) the 50-foot-wide natural gas pipeline ROW, 2) the two new transmission line poles, 3) the underground electrical ROW connecting the step-up substation to the McNary Substation, and 4) the contractor’s construction yard facilities adjacent to the Station. Approximately 2.03 acres of category 3 habitat (rabbitbrush-dominated shrub-steppe) and 34.64 acres of category 5 and 6 habitats (including weedy grassland, irrigated agriculture, and developed areas) will be temporarily disturbed. All temporarily disturbed Project areas will be seeded per ODFW requirements or returned back to agricultural use (at landowner request) after construction is complete.

Table 1 Permanent and Temporary Disturbances (in acres) to Each Habitat Type and Habitat Mitigation Category Habitat Type Mitigation Category Disturbance Acres

Permanent Disturbances Weedy Grassland #1 5 0.00 Weedy Grassland #2 5 0.00 Weedy Grassland #3 6 0.00 Weedy Grassland #4 5 18.52 Weedy Grassland #5 5 0.51 Weedy Grassland #6 6 3.00 Agriculture 6 0.00 Shrub Steppe 3 0.00 Riparian 2 0.00 Open Water 6 0.29 Developed 6 1.16


Table 1 Permanent and Temporary Disturbances (in acres) to Each Habitat Type and Habitat Mitigation Category Habitat Type Mitigation Category Disturbance Acres

Permanent Disturbances Total 23.48

Temporary Disturbances Habitat Type Mitigation Category Disturbance Acres

Weedy Grassland #1 5 9.71 Weedy Grassland #2 5 0.59 Weedy Grassland #3 6 0.68 Weedy Grassland #4 5 10.10 Weedy Grassland #5 5 0.57 Weedy Grassland #6 6 0.71 Agriculture 6 6.77 Shrub Steppe 3 2.03 Riparian 2 0.00 Open Water 6 0.12 Developed 6 5.38

Total 36.67 *Acreage is subject to change as Project plans continue to be refined.

3 SCHEDULE

In general, implementation of the measures described in this plan will begin at the start of construction activities, although it may be appropriate to implement some measures prior to the commencement of ground-disturbing activities. In particular, it may be advantageous to pre-treat selected noxious weed populations before construction activities start if treatment will prevent plants from going to seed. Erosion control and noxious weed control measures should be implemented and maintained throughout the construction phase of the Project. Restoration and revegetation of temporary disturbance areas should occur as soon as possible after construction has been completed in any given area of the Project. In instances where this is not possible due to construction requirements, temporary erosion control measures (e.g., temporary slope breakers, erosion control fabric, planting of winter wheat, etc.) should be implemented instead until final restoration efforts can be started. After construction of the Project, erosion control, noxious weed control, and replanting and seeding will continue for up to five years or until Perennial, the ODFW, and the Oregon Department of Energy (ODOE) have deemed restoration and revegetation to be successful. If the Project has not


achieved successful restoration and revegetation after five years, Perennial will consult the ODFW and ODOE regarding additional measures or an alternative course forward. Refer to the Project Restoration Monitoring Plan (Exhibit P, Appendix P-3) for more details on post-construction monitoring procedures and schedule.

4 RESTORATION AND REVEGETATION METHODS

Restoration and revegetation of temporarily disturbed Project areas will include: 1) erosion control and topsoil management, 2) noxious and invasive weed control, 3) seed mix selection and planting techniques, and 4) post-construction monitoring and contingency measures.

Monitoring of restoration efforts should be initiated during construction as work in individual areas of the Projects is completed, but most monitoring of revegetation will occur one to five years after construction has been completed.

Perennial anticipates following the restoration and re-seeding guidelines provided in this plan; however, the methods and timing could be altered at the request of landowners, the ODFW, and ODOE.

4.1 Erosion Control and Topsoil Management

Soil preservation and preparation techniques, including erosion control and topsoil management measures, shall be implemented immediately prior to, or at the start of, construction. Erosion and sediment control measures are provided in more detail in the Project’s Erosion and Sediment Control Plan (Exhibit I, Appendix I-2), and will include measures similar to those described below.

The Project shall implement the following erosion control and topsoil management measures:

• Minimize construction impacts in the Project area by, where practical and safe,limiting grading and clearing to avoid impacts on native soils and vegetation;

• Use proper soil management techniques, including topsoil stripping, stockpiling,and reapplying to establish surface conditions that would enhance development ofdiverse, stable, and self-generating plant communities. Topsoil management willapply to the transmission pipeline ROW where excavation, grading, or otherconstruction activities could result in mixing of soil layers;

• Establish stable surface and drainage conditions and use standard erosion controldevices and techniques to minimize soil erosion and sedimentation, including theinstallation of silt fencing, straw bales, mulch, straw wattle, erosion control fabric,slope breakers, and trench breakers, as appropriate;


• Establish terrain compatible with the surrounding landscape (recontouring) thatemphasizes restoration of existing drainage and landform patterns, to the extentpractical; and

• Weed control methods, including treatment approach and use of specificherbicides, shall be finalized prior to construction in coordination with individuallandowners, the ODFW, and Umatilla County.

4.2 Noxious and Invasive Weed Control

Noxious and invasive weed control should begin prior to ground disturbance through pre-treatment, if appropriate, and should continue through construction and during the operation and maintenance phases of the Project. Perennial shall implement measures to prevent or control introduction or spread of weed seeds and plant parts during construction or operations and maintenance phases of the Project. Efforts should focus on species that are designated as noxious weeds by the Oregon Department of Agriculture (ODA 2013) and by Umatilla County (Umatilla County Noxious Weed Control 2012). Table 2 shows the noxious and invasive weed species that were identified on the ROW during 2013 field surveys. In addition, Perennial shall attempt to prevent the introduction and spread of other invasive species not officially designated as noxious that could affect revegetation success, such as cheatgrass, Russian thistle, and tumble mustard.

The Project shall implement the following noxious and invasive weed control measures:

• Prevent introduction or spread of seeds and plant parts during construction oroperations and maintenance from species that are designated as noxious weeds bythe Oregon Department of Agriculture (ODA), and attempt to prevent theintroduction and spread of other invasive species not officially designated asnoxious, such as cheatgrass and Russian thistle;

• Include a discussion of the risks of noxious weeds and the Project control methodsin the Project’s environmental awareness training that Project personnel willundergo prior to entering the ROW;

• Qualified biological monitors or contract weed control personnel approved by theODA, ODOE, and Umatilla County, as appropriate, shall conduct onsite biologicalmonitoring in areas of noxious weed concern or presence before and afterconstruction;

• Pre-treat all state-designated noxious weed populations identified in Projectdisturbance areas prior to construction, as practical;


• Wash all Project vehicles and equipment before they enter the Project Site for firsttime. Typically, this is done by constructing a contained wash structure at thecontractor’s construction yard and washing vehicles immediately upon arrival atthe Project;

• Use regular site assessments and suitable herbicide application to keep off-ROWareas related to the Project, such as contractor construction yards, in weed freecondition;

• Use certified weed-free straw bales and straw mulch for soil erosion andsedimentation control measures;

• Use certified weed-free seed during re-vegetation efforts obtained from a supplierapproved by the State of Oregon; and

• Use manual, mechanical (mowing, clipping), or chemical (herbicides) techniquesto control weed populations. Perennial may utilize any of these methods on a site-specific basis. If herbicide applications are used to treat weed populations, alicensed contractor should be used to prescribe specific treatments and to applychemicals.

Table 2 Designated Noxious Weeds and Other Invasive Species Observed During 2013 Field Surveys

Latin Name Common Name ODA Classification1

Umatilla County

Classification2

Number of Sites

State-designated noxious weeds Agropyronrepens Quackgrass None3 B 4 Centaureadiffusa Diffuse

knapweed B B4 6

Kochiascoparia Kochia B B 3 Onopordumacanthium Scotch thistle B B4 9 Secale cereal Cereal rye None B 7 Tribulusterrestris Puncturevine B B 1


Table 2 Designated Noxious Weeds and Other Invasive Species Observed During 2013 Field Surveys

Latin Name Common Name ODA Classification1

Umatilla County

Classification2

Number of Sites

Invasive Species Not Designated as Noxious Bromustectorum Cheatgrass none none throughout Salsola tragus Russian thistle none none throughout

Sisymbriumaltissimum Tumble mustard none none throughout Source: ODA 2013, Umatilla County Noxious Weed Control 2012 Notes: 1 ODA Class B definition: a weed of known economic importance which occurs in the state in small enough infestations to make eradication or containment possible; or is not known to occur, but its presence in neighboring states makes future occurrence in Oregon seem imminent. Limited to intensive control at the state, county or regional level as determined on a site specific, case-by-case basis. Where implementation of a fully integrated statewide management plan is not feasible, biological control (when available) shall be the primary control method. 2Umatilla County Class B definition: a weed of known economic importance which is regionally abundant, but which may have limited distribution in some countries. Where implementation of a fully integrated statewide management plan is feasible, biological control shall be the main control approach for species for which biological agents are available. Limited to intensive control at state or county level as determined on a case-by-case basis.3This species was included on the ODA’s 2010 designated noxious weed list. 4This species has been targeted by Umatilla County for additional enforcement throughout the county in dryland annual cropping areas, irrigated crops and pastures, and dryland/range/timber.

4.3 Re-seeding Methods

Areas of temporary disturbance will be restored to original grade and soil condition as soon as possible after the final construction ground disturbance and will generally be re-contoured and de-compacted, if necessary. These areas will then be evaluated to determine whether re-seeding or other revegetation techniques are required to return the area to preconstruction vegetation conditions. Re-seeding may not be necessary or appropriate in some areas, including places where vegetation has been flattened but not crushed and those where little or no vegetation was present prior to construction. If appropriate, re-seeding will be initiated immediately after construction in any completed part of the Project. Re-seeding activities may need to be delayed, depending on the season or on weather conditions, but should always occur as soon as appropriate after construction. Preliminary seed mixes are provided in Table 3; however, the final seed mixes used may change as a result of further consultations with the ODA and ODFW or at the request of individual landowners.


Agricultural Croplands

Perennial shall coordinate with landowners and, as necessary, restore croplands to original grade and contour and repair any agricultural drainage systems that are impacted by construction. Individual landowners will be consulted when determining the proper seed mix to be used during re-seeding activities on agricultural lands. The primary goal of cropland revegetation is to return croplands to a condition consistent with typical pre-construction conditions. If necessary, in coordination with the landowner, an appropriate cover crop will be planted to hold the site until the next crop planting rotation. Cultivated agricultural areas are successfully revegetated if the replanted areas achieve crop production comparable to adjacent non-disturbed cultivated areas. Perennial shall consult with the landowner to determine whether these areas have been successfully revegetated and shall report to the ODFW and ODOE on the success of revegetation in these areas as part of its annual Restoration Monitoring Report (see Restoration Monitoring Plan, Appendix P-3).

Disturbed Grasslands and Shrub-Steppe Rangeland

Weedy, disturbed grasslands constitute the primary non-agricultural vegetation type in the Project area (approximately 61 percent of temporary disturbance areas). Shrub-steppe rangeland constitutes a very small portion of the non-agricultural vegetation type in the Project area (less than 6 percent of temporary disturbance areas). Seed mixtures for disturbed grasslands and shrub-steppe rangeland (Table 3: Seed Mixes 2 and 3, respectively) have been developed consisting of native species and desirable non-native species known to provide erosion control and wildlife forage benefits in Eastern Oregon. The current seed mix recommendations provided in Table 3 may be altered prior to construction and revegetation efforts in consultation with landowners and the ODFW.

Perennial shall use the following guidelines during re-seeding efforts:

• Re-seed disturbed areas as soon as possible after final construction disturbance in eacharea.

• Re-seed construction soil disturbance areas to restore vegetation as soon as possibleafter construction in any part of the Project where construction has been completed.

• Re-seed temporary disturbance areas during the appropriate season and as weatherconditions allow.

• Crews will attempt to conduct all re-seeding during the period from February throughearly April for construction disturbances that occurred during the winter and earlyspring. For areas where construction is completed outside of the winter or springperiods, re-seeding maybe delayed until the months of October or November (whendry season has passed). If final construction and soil restoration are not completed at a


time that allows immediate re-seeding during one of the two periods listed above (winter/spring or fall), the areas will be mulched or otherwise treated to minimize erosion until seeding can be conducted.

• Seeds will be applied using either manual or mechanical methods, depending onfactors such as the size of the area to be re-seeded and risk for further disturbance dueto the use of planting equipment (e.g., tractor or all-terrain vehicle).

• In addition, Perennial may employ either broadcasting or drilling techniques asappropriate and feasible. Broadcasting or seed drilling methods will be usedaccording to which method is most appropriate for the disturbance area.

• Straw mulch may be applied as needed immediately after seeding.

Table 3 Seed Mix for Temporarily Disturbed Project Areas

Vegetation Type Common Name Scientific Name

PLS (pounds

per acre¹,²

Description/ Purpose

Seed Mix 1: Agricultural (irrigated, dryland, and pastures)

Wheat or other crop seed, at the request of landowner.

At landowner request

(EC)

Seed Mix 2: Disturbed native grasslands

Secarbluebunch wheatgrass Pseudoregneriaspicata 6 (N) (EC) (F)

Sherman big bluegrass Poaampla 1.5 (N) (F)

Sandberg’s bluegrass Poasecunda 2.0 (N) (F) Small burnet Sanguisorba minor 2.0 (I) (F) Great Basin wildrye * Elymuscinereus 1.0 (N) (EC) (F) Needle and thread grass* Hesperostipacomata 1.0 (N) (EC) (F)

Western yarrow * Achilleamillefolium var. occidentalis 1.0 (N) (F)

Seed Mix 3: Shrub-steppe



Sandberg’s bluegrass Poasecunda 2.0 (N) (F)


Table 3 Seed Mix for Temporarily Disturbed Project Areas


PLS (pounds

per acre¹,²


Ladak alfalfa Medicago sativa 1.0 (I) (F) Small burnet Sanguisorba minor 2.0 (I) (F) Great Basin wildrye * Elymuscinereus 1.0 (N) (EC) (F) Needle and thread grass* Hesperostipacomata 1.0 (N) (EC) (F)

Western yarrow * Achilleamillefolium var. occidentalis 1.0 (N) (F)

Big sagebrush * Artemisia tridentata 1.0 (N) (F) Key: (N) = Native, (I) = Introduced, (EC) = Erosion Control, (F) = Forage * Optional species depending on site and availability1 PLS = pure live seed 2 Final pounds/acre may change at the request of the landowners or the ODFW

5 MONITORING PROGRAM

The Restoration Monitoring Plan (Exhibit P, Appendix P-3) outlines the goals, methods, and criteria to be used by Perennial to evaluate and track the success of restoration efforts during and after construction of the Project. The discussion below provides a brief summary of the monitoring procedures provided in Appendix P-3; however, Appendix P-3 is the primary document for all monitoring procedures.

Perennial will conduct annual monitoring of restoration efforts in all Project areas. The purpose of monitoring is to evaluate the effectiveness of long-term soil stability, noxious weed control, and vegetation condition within areas disturbed during construction and to identify appropriate remedial actions that will help Perennial attain successful restoration of disturbed areas.

Perennial will provide biologists and/or inspectors qualified to conduct these evaluations. Restored cultivated lands will be monitored primarily by the landowner and/or farmer for production ability after Perennial has completed final construction restoration. Landowners may report any subsequent concerns to Perennial. In many cases, the restored croplands will be replanted during the next growing season. Perennial’s monitoring teams will provide general descriptions of the conditions of cultivated agricultural areas during monitoring efforts; however, these will mainly be used to verify information provided by the landowner


and/or farmer. Therefore, most monitoring effort will occur at non-cultivated areas. However, Perennial’s monitors will note substantial restoration issues observed on cultivated lands during the course of monitoring in other Project areas. Although monitoring of some restoration measures will be applicable to all project areas (e.g., erosion control and noxious weed control), monitoring of other measures will only apply to areas that are not developed or used for agricultural farming (e.g., topsoil segregation, re-seeding). Where possible, all annual monitoring efforts will be conducted in single site visits and by the same team.

Restoration monitoring will begin in the first growing season (fall or spring) following the completion of construction and initial restoration and continue annually for up to five years. When it is determined that an area of the Project has been successfully restored at any point during years 1 to 5, by satisfying all success criteria, Perennial will request concurrence from ODOE and ODFW. If ODOE and ODFW concur, Perennial will conclude that it has no further obligation to perform revegetation activities in that area of the Project. Where this is the case, the monitoring effort may require fewer than five years. If after five years of monitoring (and remedial actions) some sites have not attained restoration success, Perennial will coordinate with ODOE and ODFW regarding appropriate steps forward. At this point Perennial may suggest additional restoration techniques or strategies be implemented, or Perennial may request a waiver from further restoration obligations at these sites.

For a complete discussion of Perennial’s monitoring procedures, refer to the Project Restoration Monitoring Plan (Appendix P-3).

6 AMENDMENT OF PLAN

This Revegetation Plan may be amended by agreement of Perennial and the ODOE. Amendments will be prepared in consultation with the ODFW and ODOE and may be made without altering the site certificate.


7 REFERENCES

EFSC (Energy Facility Siting Council). 2011. Summit Ridge Wind Farm: Revegetation and Weed Control Plan. January 14, 2011. Available at: http://www.oregon.gov/energy/Siting/docs/SRW/SRW_final_order_exhibits_081911.pdf.

_____. 2006. Klondike III Wind Project: Revegetation Plan. June 30, 2006. Available at: http://www.oregon.gov/energy/Siting/docs/KWP/KWPOB.pdf.

ODA (Oregon Department of Agriculture). 2013. Noxious Weed Policy and Classification System 2013. Oregon Department of Agriculture Noxious Weed Control Program. Salem, Oregon, 2013.

Umatilla County Noxious Weed Control. 2012. Umatilla County 2011 Noxious Weed List. Pendleton, Oregon.

http://www.oregon.gov/energy/Siting/docs/SRW/SRW_final_order_exhibits_081911.pdf

http://www.oregon.gov/energy/Siting/docs/SRW/SRW_final_order_exhibits_081911.pdf

http://www.oregon.gov/energy/Siting/docs/KWP/KWPOB.pdf


Appendix CPerennial Wind Chaser Station Restoration Monitoring Plan

Application for Site Certificate Appendix P-3 Perennial Wind Chaser Station 2014


Restoration Monitoring Plan

October 2014






Application for Site Certificate i Appendix P-3 Perennial Wind Chaser Station 2014

TABLE OF CONTENTS

1 INTRODUCTION ............................................................................................................. 1

2 SITE DESCRIPTION AND NATURE OF IMPACTS ................................................. 1

3 SUMMARY OF RESTORATION MEASURES ........................................................... 3

3.1 Erosion Control, Topsoil Management, and Soil Stabilization Measures .............. 4

3.2 Noxious and Invasive Weed Control Measures ...................................................... 4

3.3 Revegetation Measures ........................................................................................... 5

4 MONITORING PROCEDURES ..................................................................................... 7

4.1 Erosion Control, Topsoil Management, and Soil Stabilization Monitoring Procedures ............................................................................................................... 7

4.2 Noxious and Invasive Weed Control Monitoring Procedures ................................ 8

4.3 Revegetation Monitoring Procedures ...................................................................... 9

4.4 Restoration Success Criteria ................................................................................. 10

4.5 Remedial Action and Maintenance ....................................................................... 11

4.6 Monitoring Schedule ............................................................................................. 12

4.7 Reporting ............................................................................................................... 13

5 AMENDMENT OF PLAN ............................................................................................. 13

6 REFERENCES ................................................................................................................ 17

List of Tables

Table

Table 1 Project Disturbance Areas ......................................................................................... 2

Table 2 Project Waterbodies .................................................................................................. 8

Application for Site Certificate ii Appendix P-3 Perennial Wind Chaser Station 2014

Table 3 Noxious Weeds Observed at the Station Site and in the 50-foot-wide Pipeline Right-of-Way .......................................................................... 14

Table 4 Seed Mixes for Temporarily Disturbed Project Areas ............................................ 15

List of Figures

Figures 1a through 1e Noxious Weeds Observed in the Proposed Facility Site and 50-Foot-Wide ROW

Figure 2 Field Mapped Habitats of the Proposed Step-up Substation and Its Associated Underground Transmission Line

Figure 3a to 3b Field Mapped Habitats within 0.5 Mile of the Proposed Facility Site and 50-foot-wide Pipeline ROW


1 INTRODUCTION

This Restoration Monitoring Plan outlines the goals, methods, and criteria to be used by Perennial-WindChaser LLC (Perennial) to evaluate and track the success of restoration efforts during and after construction of the Perennial Wind Chaser Station project (Project). These efforts include measures to help ensure proper topsoil management, soil stabilization, and erosion control; noxious weed control; and site revegetation. This plan focuses primarily on post-construction monitoring procedures; however, some measures implemented during earlier phases of construction, such as pre-treatment of noxious weeds and temporary erosion control techniques, may require monitoring during the construction phase.

The goals of the Project restoration measures and monitoring procedures are to: 1. Avoid or minimize impacts on native soils and habitats caused by erosion and loss or

degradation of topsoil;2. Avoid or control the introduction or spread of noxious weeds in or immediately adjacent

to the Project area (including along Project access roads);3. Re-establish native plant communities in non-cultivated temporary disturbance areas

within five years of completion of the construction of the Project; and4. Re-establish the conditions for pre-Project farming practices in cultivated agricultural

areas of the Project within one year of completion of the construction of the Project;

This plan provides summaries only of the restoration measures that will be implemented during and after construction of the Project. These measures are discussed in more detail in the Project Erosion and Sediment Control Plan (Exhibit I, Appendix I-2) and in the Project Revegetation and Noxious Weed Control Plan (Exhibit P, Appendix P-2). Although these other plans also discuss monitoring procedures, this plan is the primary document for Project monitoring procedures. The monitoring procedures described in this plan supersede any monitoring procedures discussed in those plans.

The procedures described in this plan have been reviewed and approved by the Oregon Department of Energy (ODOE), the Oregon Department of Fish and Wildlife (ODFW), and the Umatilla County Weed Control Board. The procedures described in this plan utilize some of the restoration and revegetation methods and standards approved by ODOE for other energy projects in this region of Oregon (ODOE 2006, 2011).

2 SITE DESCRIPTION AND NATURE OF IMPACTS

The Project will be located on private lands in Umatilla County, Oregon. The project components relevant to this monitoring plan, including impacts types and acreages, are provided in Table 1 and described below.


Permanent ground disturbance related to construction will occur at 1) the Energy Facility Site (Station), 2) the step-up substation, and 3) and the riser structures at the Bonneville Power Administration’s McNary Substation. At these sites, approximately 23.48 acres that consist of developed areas and weedy grasslands will be permanently altered. These areas will not be revegetated after construction, although appropriate soil stabilization, erosion control, and noxious weed control measures will be implemented in areas that have non-impervious surfaces.

Temporary ground disturbances related to construction will occur at all other Project sites, including 1) the natural gas pipeline right-of-way (ROW), 2) the construction laydown and parking area, 3) the underground electrical ROW connecting the step-up substation to the McNary Substation, 4) the contractor’s construction yard facilities adjacent to the Station, and several other small project features. At these sites, an estimated 36.67 acres of land will be temporarily impacted as a result of the Project: approximately 22.5 acres composed of weedy grasslands; 12.2 acres of developed or agricultural lands; and 2 acres of shrub-steppe habitat.

Often, the intensity of construction impacts on vegetation and habitat in temporary disturbance areas will be low and will often be limited to the flattening of vegetation by rubber-tired vehicles. In some instances, the intensity of impacts in temporary disturbance areas will be higher and will require the removal of topsoil and vegetation through grading, excavation, or drilling activities.

Table 1 Project Disturbance Areas

Project Feature Notes Acres Impacted Temporary Permanent

Permanent disturbance areas

Station site Power station and switchyard -- 19.97

Step-up Substation Step-up voltage to the BPA’s McNary Substation

-- 3.0

Risers structure within McNary Substation/USACE lands -- 0.51

Temporary disturbance areas

Construction Laydown and Parking (located outside of Energy Facility Site boundary)

During construction 5.11 --

Natural Gas Pipeline 4.63 miles long, 50-feet-wide ROW 28.06 --

Initial tie-in Transmission Poles (two new towers) 2 towers, 0.23 acres each 0.46 --

Underground 500-kV Transmission Cable

Step-up substation to risers 0.55 --

Underground Process Water Line 208 feet by 50 feet 0.24 --

Underground Reclaimed Water Line 538 feet by 50 feet 0.62 --


Table 1 Project Disturbance Areas

Project Feature Notes Acres Impacted Temporary Permanent

T-Line Tie-in to Substation 100 x 11 feet 0.03 --

Step-up Substation Road Upgrade Gravel on existing access road (12 feet by 800 feet long) 0.22 --

Transmission Line Reconductoring1 12 stringing sites (50 feet by 100 feet) 1.381 --

Subtotal 36.67 23.48

TOTAL 60.15 Notes: 1 Locations of up to 12 stringing sites (50 X 100 feet each) associated with the transmission line reconductoring have not been determined. No excavating, grading, or other soil disturbance will occur at these sites; potential disturbances will primarily result from vehicles driving on grass, shrubs, and other vegetation. Key: BPA Bonneville Power Administration kV kilovolt ROW right-of-way USACE United States Army Corps of Engineers

3 SUMMARY OF RESTORATION MEASURES

Successful restoration of Project disturbance areas will be accomplished by implementing measures during construction that are designed to help ensure success in three main areas:

• Erosion control, topsoil management, and soil stabilization;• Noxious weed control; and• Revegetation.

Soil stabilization, erosion control, and noxious weed control measures will generally be implemented in all Project areas, including both temporary disturbance areas and permanent aboveground facilities. However, topsoil management and revegetation measures will generally only be implemented in temporary disturbance areas, including the pipeline ROW and contractor yards and parking areas. The Project is not required to restore vegetation or original soil conditions in areas with permanent aboveground Project facilities, such as the power generating facility (Station) site and the step-up substation. For cultivated agricultural lands, the Project will determine appropriate revegetation, soil stabilization, and topsoil restoration methods in coordination with the individual landowner and/or farmer.

The sections below summarize the restoration measures that will be implemented during construction of the Project that may be relevant to monitoring procedures. These measures are discussed in more detail in the Project Erosion and Sediment Control Plan, located in Exhibit I, Appendix I-2 and in the Project Revegetation and Noxious Weed Control Plan in Exhibit P,


Appendix P-2. The sections below are intended for use as a reference by field monitoring personnel after the measures have already been implemented.

3.1 Erosion Control, Topsoil Management, and Soil Stabilization Measures

The goal of these soil preservation measures is to avoid or minimize construction-related impacts on native soils and on the environment that may result from erosion or mixing of topsoil with subsoil layers. Perennial will implement erosion control, topsoil management, and soil stabilization measures according to the following general guidelines:

• Erosion control measures will be implemented immediately prior to ground disturbancesin Project areas. These measures will be maintained for the duration of the constructionand restoration phases, as necessary, and may be maintained into the operations andmaintenance phase until the risk of erosion has been eliminated and areas of disturbanceare successfully restored.

• Standard erosion control techniques will be used, including the use of silt fencing, strawbales, mulch, straw wattle, erosion control fabric, water bars, temporary and permanentslope breakers, trench breakers, and other techniques, as appropriate.

• At the discretion of Perennial’s environmental inspectors and the pertinent landowners,some permanent erosion control measures may be appropriate (e.g., permanent slopebreakers).

• Topsoil management techniques will be implemented at the start of ground-disturbingactivities and maintained throughout construction, as needed.

• At a minimum, trench line and spoils side topsoil stripping and segregation will beperformed in temporary disturbance areas, unless the pertinent landowner and/or farmerhas requested otherwise.

• At the discretion of Perennial’s environmental inspectors and the pertinent landownerand/or farmer, the contractor may conduct topsoil segregation in other Project areaswhere topsoil and subsoil might mix, such as the pipeline ROW during muddyconditions, or other areas where excavation or grading are needed.

• Soil stabilization measures will be implemented as soon as construction in any Projectarea is complete and, if needed, again during the final restoration and clean-up phase.These measures typically include restoring the site to original grade and contour andcompacting soils as necessary.

3.2 Noxious and Invasive Weed Control Measures

Perennial will implement measures to prevent or control introduction or spread of designated noxious weed seeds and plant parts prior to and during construction and during the operations and maintenance phases of the Project. Noxious weed control efforts will focus on species that are designated as noxious weeds by the Oregon Department of Agriculture (ODA 2013) and by


Umatilla County (Umatilla County Noxious Weed Control 2012). The goal of noxious weed control is to prevent the introduction or spread of noxious weeds in or immediately adjacent to the Project area, but not to eradicate all noxious weed populations in Project areas.

Six designated noxious weed species were observed during field surveys in 2013: quackgrass (Agropyron repens), diffuse knapweed (Centaurea diffusa), kochia (Kochia scoparia), Scotch thistle (Onopordum acanthium), cereal rye (Secale cereal), and puncturevine (Tribulus terrestris). Locations of noxious weed observations are shown in Table 3 and Figures 1a to 1e. These species are all classified as category B by the State of Oregon and/or Umatilla County, indicating that limited to intensive control is required, as determined on a site-specific, case-by-case basis. In addition, surveyors observed three species of common invasive species that are not designated as noxious: including cheatgrass (Bromus tectorum), Russian thistle (Salsola tragus), and tumble mustard (Sisymbrium altissimum). Perennial is not required to treat or control these additional species.

Perennial will implement noxious weed control measures according to the following general guidelines:

• Qualified biologists will conduct onsite noxious weed surveys and monitoring.• Noxious weed control may utilize manual (hand pulling), mechanical (mowing,

clipping), or chemical (herbicides) treatment techniques to control weed populations.• Perennial may utilize any of these methods on a site-specific basis but shall obtain

approval from the ODFW and individual landowners prior to using specific herbicides.• Only a state-licensed weed control contractor will apply herbicide treatments.• Assess Project sites regularly during construction and treat weed populations as needed.• Use certified weed-free straw bales and straw mulch for soil erosion and sedimentation

control measures, and revegetation efforts.• Finalize weed control methods, including treatment approach and use of specific

herbicides, prior to construction in coordination with individual landowners, the ODFW,and Umatilla County.

3.3 Revegetation Measures

Perennial will re-seed all temporary disturbance areas where soil and vegetation have been disturbed, unless the individual landowners have requested otherwise. Re-seeding may not be necessary or appropriate in some areas, including sites where vegetation has been flattened but not crushed and areas where little or no vegetation was present prior to construction. In all cases, Perennial will seek approval from the pertinent land owner and/or farmer before re-seeding.

Agricultural Croplands


Perennial will coordinate with landowners and/or farmers and, as necessary, restore croplands to original grade and contour and repair any agricultural drainage systems that are impacted by construction. Individual landowners and/or tenant farmers will be consulted when determining the proper seed mix (usually a single type of crop seed, such as winter wheat) to be used during re-seeding activities on agricultural lands. The goal of cropland revegetation is to return croplands to a condition and production ability consistent with typical pre-construction condition. Restoration on cultivated lands, including potential re-seeding, will be conducted as soon as possible after construction has been completed.

Disturbed Grasslands and Shrub-Steppe Rangeland

During the clean-up phase of the Project, all non-cultivated temporary disturbance areas will be restored to original grade and soil condition as soon as possible after the final construction activities. For the Project, this includes areas with six different types of weedy grasslands, and one shrub-steppe area dominated by sagebrush and weedy grasses. These areas will then be evaluated to determine whether re-seeding is required to return them to pre-construction vegetation conditions. If re-seeding is necessary, this will generally be initiated immediately after construction is completed in any part of the Project site. In some cases, final re-seeding may need to be delayed, depending on the season or on weather conditions, but it should always occur as soon as appropriate after construction. Temporary seeding may be appropriate in some cases if a long delay is expected between the end of construction at a site and final restoration.

The goal of grassland and shrub-steppe rangeland restoration and re-seeding is to return these areas to a vegetative cover and species assemblage that are consistent with (not identical to) typical pre-construction conditions, or better. Individual landowners will be contacted for approval before applying seed mixes to these areas. Restoration of non-cultivated areas will utilize seed mixes that incorporate both native and desirable non-native seed species. Preliminary seed mixes have been determined and are provided in Table 4; the final seed mixes used may change as a result of further consultations with the ODA and ODFW or at the request of individual landowners.

Perennial will implement revegetation measures according to the following general guidelines: • Re-seed areas as soon as possible after final construction disturbance in each area.• Re-seed during the appropriate season (usually winter/spring or fall) and as weather

conditions allow.• If final construction is not completed at a time that allows immediate re-seeding, the

areas will be mulched or otherwise treated to minimize erosion until seeding can occur.• All seed mixes, planting methods, noxious weed control treatments, topsoil conservation

methods, and erosion control measures will only be implemented with the approval of theODFW and the individual landowners and/or farmers.


4 MONITORING PROCEDURES

Perennial will conduct annual monitoring of restoration efforts in all Project areas. Perennial will provide biologists and/or inspectors qualified to conduct these evaluations. Restored cultivated lands will be monitored primarily by the landowner and/or farmer for production ability after Perennial has completed final construction restoration. Landowners may report any subsequent concerns to Perennial. In many cases, the restored croplands will be replanted during the next growing season. Perennial’s monitoring teams will provide general descriptions of the conditions of cultivated agricultural areas during monitoring efforts; however, these will mainly be used to verify information provided by the landowner and/or farmer. Therefore, the sections below primarily address monitoring at non-cultivated areas. However, Perennial’s monitors will note substantial restoration issues observed on cultivated lands during the course of monitoring in other Project areas. Although monitoring of some measures will be applicable to all project areas (e.g., erosion control and noxious weed control), monitoring of other measures will only apply to areas that are not developed or used for agricultural farming (e.g., topsoil segregation, re-seeding). Where possible, all annual monitoring efforts will be conducted in single site visits and by the same team.

The purpose of monitoring is to evaluate the effectiveness of long-term soil stability, noxious weed control, and vegetation condition within areas disturbed during construction and to identify appropriate remedial actions that will help Perennial attain successful restoration of disturbed areas.

4.1 Erosion Control, Topsoil Management, and Soil Stabilization Monitoring Procedures

Perennial will provide construction inspectors and/or environmental inspectors during all phases of construction to oversee and inspect the implementation and maintenance of erosion control, topsoil segregation, and soil stabilization measures. During the operations and maintenance phase of the Project, Perennial’s biologists and/or inspectors will conduct annual monitoring to evaluate the success of these measures.

Monitoring for these soil preservation measures will be conducted in all Project areas, but will focus on: • Areas particularly susceptible to erosion, such as those near Project drainages and

waterbodies (see Table 2) and areas with slopes;• Areas where topsoil segregation was conducted;• The pipeline trench line (e.g., for subsidence); and• Areas where temporary or permanent erosion control devices (techniques) are in place.


Table 2 Project Waterbodies

Project ID Type Name Location

(milepost) SS-001-003 Canal/ditch Westland A Canal 0.00 SS-001-002 Canal/ditch Westland A Canal 1.29 SS-001-001 Canal/ditch High Line Canal 2.03

Monitoring crews will describe the effectiveness of the measures and differentiate between normal levels of wear-and-tear (e.g., due to weather conditions) and implementation failures. Monitors should recommend remedial actions for Perennial to take when needed, such as maintaining or repairing previously implemented measures or implementing new measure, if appropriate. All reports and recommendations for maintenance or remedial action should be supported by detailed notes and photographic documentation, and be recorded using a global positioning system (GPS).

4.2 Noxious and Invasive Weed Control Monitoring Procedures

Prior to construction, Perennial’s biologists will conduct surveys for designated noxious weeds. Perennial will provide construction inspectors and/or environmental inspectors during all phases of construction to oversee and inspect the implementation of noxious weed control measures and monitor weed populations as necessary. During the operations and maintenance phase of the Project, Perennial’s biologists will conduct annual noxious weed monitoring.

Monitoring of noxious weed measures will be conducted in all areas disturbed by the Project, including both temporary and permanent disturbance areas, but will focus on:

• Areas where noxious weeds were identified during pre-construction surveys;• Any sites used as noxious weed cleaning stations during construction; and• High traffic areas, including areas used for parking and access during construction, the

operations building site, ROW access points, and drive lanes during operations andmaintenance.

Monitoring crews will describe the effectiveness of noxious weed control measures across the Project area and recommend remedial actions for Perennial to conduct as necessary. Crews will inspect noxious weed sites documented during pre-construction surveys to determine if they have reestablished and, if so, if they have spread. Locations of noxious weed observations are shown in Table 3 and Figure 1a through 1e.

All recommendations for remedial actions should be supported by detailed notes and photo-documentation and be recorded using GPS. The Project Biological Resources Survey Report (Exhibit P, Appendix P-1) provides more detail on the noxious weeds observed during surveys, including species, percent cover, and extent of population. The same types of data will be collected during monitoring efforts.


4.3 Revegetation Monitoring Procedures

Perennial will provide qualified biologists to conduct annual monitoring of re-seeded areas. Biologists will select representative sites in Project revegetation areas for analysis and compare the results to the vegetation in nearby areas not disturbed by construction. Analysis at each site will be conducted at a vegetation monitoring plot within the Project boundary and a reference site outside of the Project boundary. Perennial does not have access to lands beyond its 50-foot-wide permanent ROW easement or other Project boundaries; therefore, it is not possible to conduct detailed surveys of reference plots in areas outside of the Project boundary. Instead, biologists will visually assess vegetation conditions at the reference sites in adjacent areas without leaving the Project boundary. In addition to providing detailed documentation of revegetation efforts at the vegetation monitoring plot and reference sites, the investigators will provide an overview summary of revegetation efforts across all temporary disturbance areas. This latter effort will not require sampling and will instead be based on visual inspection of the ROW conditions.

The purpose of revegetation monitoring is to help Perennial ensure that vegetative cover and species assemblage in temporary disturbance areas is restored to levels that are of similar quality or better than the conditions at reference sites. Because most of the temporary disturbance areas were already heavily disturbed and supported a large proportion of non-native plants prior to construction, achieving purely native plant assemblages is not the goal of this effort. Rather, the goal will be to achieve an acceptable level of ground cover of all plants, as well as an acceptable assemblage of desirable plant species (such as those included in the seed mix). Restoration success criteria are further described in Section 4.4.

Revegetation Monitoring Plots

Vegetation monitoring plots will each be 10 feet in diameter and be located at representative areas in some of the larger temporary disturbance areas. Plots should be visited during the growing season. The types of data recorded for vegetation monitoring plots and reference sites will be identical and will include GPS documentation, photographic documentation, and analysis for vegetative cover and species composition. The same revegetation monitoring plots and reference sites will be analyzed from year to year, unless this is not appropriate due to fire damage, disturbance by the landowner, or other occurrence.

Locations of vegetation monitoring plots and nearby reference sites will be as follows: • At least two plots (and reference sites) per mile will be established in the pipeline ROW

(10 plots total);• Two plots (and reference sites) will be established at the construction laydown and

parking area;• One plot (and reference site) will be established in the underground electrical ROW near

the McNary Substation; and


• No plots will be placed in cultivated or developed lands, in Project permanentaboveground facilities, or it he remaining smaller temporary disturbance areas.

For the Project, temporary construction disturbance will occur in areas with the following habitat types: six different types of weedy grasslands and one shrub-steppe area dominated by sagebrush and weedy grasses. In addition, cultivated areas that were re-seeded will require at least a cursory inspection to verify information provided by the landowner and/or farmer. These areas are shown in Figures 2, 3a, and 3b and are discussed in more detail in the Project’s 2013 Biological Survey Report (Exhibit P, Appendix P-1).

During revegetation monitoring, the investigator will collect the following information regarding conditions at the sites: • Confirmation that all areas requiring revegetation have been seeded (part of the overview

summary of restoration efforts for the entire ROW);• Vegetation characteristics at revegetation monitoring plots and associated reference sites,

including:o Plant species and percent cover of species (visual estimate)o Percentage of total vegetative cover (visual estimate)o Percentage of bare soil (visual estimate)

• Percent cover of native and introduced desirable plant species (included in seed mixes orby natural recruitment);

• Percent cover of noxious weed species (those listed as noxious under the ODA NoxiousWeed Control Program, by Umatilla County, or other invasive species such as cheatgrassand Russian thistle), and density estimates by species if present;

• Presence of soil condition or erosion problems that are negatively influencingrevegetation success and require remedial action; and

• For cultivated agricultural lands, the monitors will report crop presence or evidence ofrecent harvest.

4.4 Restoration Success Criteria

Erosion control, topsoil management, and soil stabilizing measures will be deemed successful if little to no loss of native soils is visible. If the levels of recent native soil loss appears to be similar that of nearby areas outside of the Project area, Perennial will consider this to be acceptable and meeting the criteria.

Noxious weed control measures will be deemed successful if the numbers, extents, and densities of noxious weed populations are similar to pre-construction conditions, and populations have not spread to areas outside of the Project boundary that were not previously infested.


Disturbed grasslands and shrub-steppe rangeland will be considered successfully restored if the habitat quality in these areas is similar to or better than that at the reference sites. Because most of these areas were already heavily disturbed and supported a large proportion of non-native plants (including high abundance of cheatgrass) prior to construction, it is not the goal of this effort to achieve the exact levels of ground cover and species assemblages that were present prior to disturbance. Rather, the goal will be to achieve habitat quality that is similar to, or better than, the habitat quality observed at the reference site.

Based on the revegetation criteria approved by ODOE and ODFW for recent energy projects in similar habitat (ODOE 2006, 2007), Perennial will use the following criteria to determine post-construction revegetation success:

• Perennial will aim for restored sites to be dominated by desirable species; and

• Perennial will aim to achieve at least a 30 percent total canopy cover for all species and aground cover of at least 25 percent for desirable species, unless conditions at referencesites are lower than this. Vegetation percent cover goals may be adjusted to match thetypical percent cover in surrounding undisturbed areas.

For the purposes of these revegetation efforts, “desirable species” indicates not only the native or beneficial non-native species included in the seed mix, but also those that may be recruited naturally. Reseeding or replanting efforts will occur, in consultation with the ODFW, in any area where monitoring identifies a restoration failure.

Actively cultivated agricultural croplands will be considered successfully restored if these areas achieve crop production comparable to adjacent agricultural areas that were not disturbed during construction. No annual plot surveys will be conducted on active agricultural croplands. Perennial shall coordinate with the landowners and/or farmers to determine when sites have been successfully restored.

4.5 Remedial Action and Maintenance

Following each of the annual monitoring surveys described above, Perennial will conduct remedial measures as needed to address remaining soil impacts and revegetation requirements not achieved through initial plantings.

Common remediation measures that monitoring crews may recommend include: • Re-seed select areas where significant areas of bare soil remain after establishment of

initial seeding;• Control/treat noxious weed/invasive plant species by qualified personnel using

appropriate methods for the target species (e.g., herbicides applied by licensedpersonnel);

• Repair temporary or permanent erosion control structures;


• Install additional temporary or permanent erosion control structures; and• Decompact soils where problematic soil conditions are negatively influencing

revegetation efforts.

If the monitors recommend remedial actions, these recommendations will be provided in the annual monitoring report submitted to Perennial. Perennial will make every attempt to implement the recommended remedial actions as soon as possible, considering the season, weather conditions, and other site-dependent constraints. In general, remedial actions should be conducted within 30 days of the problems being identified in the field, if appropriate. However, if actions are needed within a shorter time frame to prevent restoration failure, the monitoring crews will notify Perennial as soon as possible after documentation of problem area (via telephone or email). Perennial will document revegetation progress and remedial actions taken in its Restoration Monitoring Report to the ODFW and ODOE (see Section 5.4).

4.6 Monitoring Schedule

During the construction phase, monitoring of restoration efforts should be initiated immediately after measures are implemented, as appropriate. Typically, Perennial’s environmental inspectors will inspect soils and noxious weed measures (e.g., erosion control and noxious weed treatments) on a daily basis in areas of active construction, or on a weekly basis in other Project areas. In addition, all erosion control techniques and devices will be inspected within 24 hours of any large rain event (0.5 inch or greater). Monitoring for revegetation success will not begin in earnest until the first growing season after the construction phase has been completed.

Post-construction restoration monitoring efforts will be conducted according to the following general guidelines:

• Monitoring for all restoration measures will be conducted concurrently, when possible,and will begin in the first growing season (fall or spring) following the completion ofconstruction and initial restoration and continue annually for up to five years.

• When it is determined that an area of the Project has been successfully restored at anypoint during years 1 to 5, by satisfying all success criteria, Perennial will requestconcurrence from ODOE and ODFW. If ODOE and ODFW concur, Perennial willconclude that it has no further obligation to perform revegetation activities in that area ofthe Project. Where this is the case, the monitoring effort may require fewer than fiveyears.

• If after five years of monitoring (and remedial actions) some sites have not attainedrestoration success, Perennial will coordinate with ODOE and ODFW regardingappropriate steps forward. At this point Perennial may suggest additional restoration


techniques or strategies, or Perennial may request a waiver from further restoration obligations at these sites.

4.7 Reporting

Perennial will provide an annual Restoration Monitoring Report to ODOE and ODFW following each monitoring effort. Each annual report will provide a summary of field data collected during field visits and include an assessment of whether restoration efforts are meeting the success criteria. This reports will provide assessments of restoration efforts at each representative monitoring site (i.e., the vegetation monitoring plots), as well as of restoration efforts for the Project as a whole. This will include a description of the restoration status of cultivated lands. The reports will document remedial actions (e.g., seeding, noxious weed control, and repair of erosion control structures) taken to date, additional remedial actions planned for any areas that are not trending towards success, and the anticipated dates of completion of each of these actions.

When Perennial deems an area of the Project successfully restored by satisfying all success criteria, this will be stated in the annual revegetation report. If ODOE and ODFW concur, Perennial will conclude that it has no further obligation to perform revegetation activities in that area of the Project. Therefore, the monitoring effort for some areas of the Project may require fewer than five years. If after five years of monitoring (and remedial actions) some sites have not attained restoration success, Perennial’s year 5 annual report will discuss potential steps forward for these sites. Perennial may then seek guidance from ODOE and ODFW for additional restoration techniques or request a waiver from further restoration obligations at these sites. If additional restoration is required, Perennial will continue to provide annual monitoring reports to ODOE and ODFW until efforts are halted.

5 AMENDMENT OF PLAN

Perennial anticipates completing the restoration and re-seeding guidelines provided in this plan; however, the methods and timing could be altered at the request of landowners, the ODFW, and ODOE. This Restoration Monitoring Plan may be amended by agreement of Perennial and ODOE. Amendments will be prepared in consultation with ODOE and ODFW and may be made without altering the site certificate.


Table 3 Noxious Weeds Observed at the Station Site and in the 50-foot-wide Pipeline Right-of-Way

ID Species Location (milepost) Cover Diameter

NW-003-008 Diffuse knapweed 0.23 6–25% 300+ feet

NW-003-009 Diffuse knapweed 0.23 <1% 100 feet

NW-003-007 Scotch thistle 0.24 <1% 150 feet




NW-003-005 Kochia 0.5 26–50% 50 feet

NW-003-012 Puncturevine 0.5 1–5% 300+ feet

NW-001-013 Cereal rye 0.59 <1% 300+ feet



NW-003-002 Kochia 1.29 <1% single plant


NW-001-011 Scotch thistle 1.35 <1% single plant

NW-001-009 Cereal rye 1.55 1–5% 300+ feet


NW-001-008 Cereal rye 2.06 <1% 50 feet

NW-001-006 Cereal Rye 2.32 26–50% 300+ feet

NW-001-005 Quackgrass 2.51 <1% 100 feet

NW-001-004 Quackgrass 2.93 <1% 300+ feet



NW-001-001 Scotch thistle 4.68 <1% 300+ feet

NW-001-014 Scotch thistle Facility Site <1% 300+ feet

NW-001-015 Scotch thistle Facility Site <1% 150 feet

NW-001-016 Scotch thistle Facility Site <1% 150 feet

NW-001-017 Cereal rye Facility Site <1% 150 feet

NW-003-010 Kochia Facility Site <1% 10 feet

NW-003-011 Diffuse knapweed Facility Site 6–25% 300+ feet

NW-003-014 Diffuse knapweed Interconnect 1–5% 50 feet

*Noxious weed populations were recorded during field survey in 2013. Conditions at time of construction areexpected to differ slightly.


Table 4 Seed Mixes for Temporarily Disturbed Project Areas


PLS (pounds

per acre¹,²


Seed Mix 1: Agricultural (irrigated, dryland, and pastures)

Wheat or other crop seed, at the request of landowner. At landowner request

(EC)

Seed Mix 2: Disturbed native grasslands




Small burnet Sanguisorba minor 2.0 (I) (F)

Great Basin wildrye* Elymuscinereus 1.0 (N) (EC) (F)

Needle and thread grass* Hesperostipacomata 1.0 (N) (EC) (F)

Western yarrow* Achilleamillefolium var. occidentalis 1.0 (N) (F)

Seed Mix 3: Shrub-steppe




Ladak alfalfa Medicago sativa 1.0 (I) (F)

Small burnet Sanguisorba minor 2.0 (I) (F)

Great Basin wildrye* Elymuscinereus 1.0 (N) (EC) (F)

Needle and thread grass* Hesperostipacomata 1.0 (N) (EC) (F)

Western yarrow* Achilleamillefolium var. occidentalis 1.0 (N) (F)

Big sagebrush* Artemisia tridentata 1.0 (N) (F)

Key: (N) = Native, (I) = Introduced, (EC) = Erosion Control, (F) = Forage * Optional species depending on site and availability1 PLS = pure live seed 2 Final pounds/acre may change at the request of the landowners or the ODFW


6 REFERENCES

ODA (Oregon Department of Agriculture). 2013. Noxious Weed Policy and Classification System 2013. Oregon Department of Agriculture Noxious Weed Control Program. Salem, Oregon, 2013.

ODOE (Oregon Department of Energy). 2007. Biglow Canyon Wind Farm: Revegetation Plan. March 10, 2007. Available at: http://www.oregon.gov/energy/Siting/docs/BCW/BCW_final_order_063006.pdf

_____. 2006. Klondike III Wind Project: Revegetation Plan. June 30, 2006. Available at: http://www.oregon.gov/energy/Siting/docs/KWP/KWPOB.pdf

Umatilla County Noxious Weed Control. 2012. Umatilla County 2011 Noxious Weed List. Pendleton, Oregon.

http://www.oregon.gov/energy/Siting/docs/KWP/KWPOB.pdf

\\prtbhp1\gis\Portland\PerennialPower\Maps\MXDs\Field_Survey_Report\FieldSurvey_NoxiousWeeds_buffers.mxd

Figure 1a

Noxious Weeds Observedin the Proposed Facility Site,

Step-up Substation,and 50-foot-wide ROW

Perennial Wind Chaser StationSource: ESRI 2010, E&E Field Data 2013

Existing Transmission LineUnderground Transmission Line

Step-up Substation

Noxious Weeds*Cereal RyeQuackgrassScotch ThistleDiffuse KnapweedKochiaPuncturevine

Cereal Rye ExtentQuackgrass ExtentScotch Thistle ExtentKochiaDiffuse KnapweedPuncturevine

0 500 1,000

Feet

*The approximate extent of each observedpopulation and its associated GPS points ismapped within Project ROWs

26

NW-001-011

NW-001-012

NW-001-013

NW-001-014NW-001-015

NW-001-016

NW-001-017

NW-003-001NW-003-002

NW-003-003NW-003-012

NW-003-004NW-003-005NW-003-006

NW-003-007

NW-003-008NW-003-009NW-003-010

NW-003-011

0

1

84


Source: ESRI 2010, E&E Field Data 2013

Existing Transmission LineNew Overhead Transmission LineNatural Gas PipelineNatural Gas Pipeline50-foot Buffer

Station



0 500 1,000

Feet


Figure 1b

Noxious Weeds Observedin the Proposed Facility

Site and 50-foot-wide ROW


27

NW-001-007

NW-001-008

NW-001-009

NW-001-010

NW-001-011

NW-001-012

17

NW-003-001NW-003-002

1

84



Natural Gas PipelineNatural Gas Pipeline50-foot Buffer



0 500 1,000

Feet


Figure 1c




28

NW-001-002

NW-001-003

NW-001-004

NW-001-005

NW-001-006

2

3






0 500 1,000

Feet


Figure 1d




29

NW-001-001

4

4.63






0 500 1,000

Feet


Figure 1e




30

11.59

\\prtbhp1\gis\Portland\PerennialPower\Maps\MXDs\Field_Survey_Report\FieldSurvey_Habitat_StepUp.mxd

Figure 2

Field Mapped Habitatsof the Proposed Step-up

Substation and Its AssociatedUnderground Transmission Line


MilepostsExisting Transmission LineUnderground Transmission LineStep-up Substation

Field Data - HabitatWeedy Grassland #5Weedy Grassland #6

0 150 300

Feet

15

0

1

2

82

82

84

\\prtbhp1\gis\Portland\PerennialPower\Maps\MXDs\Field_Survey_Report\FieldSurvey_Habitat_GasPipeline.mxd

Figure 3a

Field Mapped Habitatswithin 0.5 Mile of the

Proposed Facility Site and50-foot-wide Pipeline ROW


MorrowCounty

UmatillaCounty

BentonCounty

MilepostsNatural Gas Pipeline0.5-mile BufferStation

Field Data - HabitatAgricultureDevelopedOpen WaterRiparian

Shrub SteppeWeedy Grassland #1Weedy Grassland #2Weedy Grassland #3Weedy Grassland #4

0 1,000 2,000

Feet

14

3

4

4.63

207

\\prtbhp1\gis\Portland\PerennialPower\Maps\MXDs\Field_Survey_Report\FieldSurvey_Habitat_GasPipeline.mxd

Figure 3b

Field Mapped Habitatswithin 0.5 Mile of the

Proposed Facility Site and50-foot-wide Pipeline ROW


MorrowCounty

UmatillaCounty

BentonCounty

MilepostsNatural Gas Pipeline0.5-mile BufferStation

Field Data - HabitatAgricultureDevelopedOpen WaterWeedy Grassland #1

0 1,000 2,000

Feet

13


Appendix DPerennial Wind Chaser Station

Biological Monitoring Plan


Biological Monitoring Plan

October 2014






Application for Site Certificate ii Appendix P-4 Perennial Wind Chaser Station 2014

TABLE OF CONTENTS

1 INTRODUCTION ............................................................................................................. 1

2 SITE DESCRIPTION AND NATURE OF IMPACTS ................................................. 1

3 SUMMARY OF RESTORATION MEASURES ........................................................... 2

3.1 General Fish and Wildlife Habitat Measures .......................................................... 2

3.2 Threatened and Endangered Species Measures ...................................................... 4

4 MONITORING PROCEDURES ..................................................................................... 5

4.1 Remedial Action and Maintenance ......................................................................... 6

4.2 Monitoring Schedule ............................................................................................... 7

4.3 Reporting ................................................................................................................. 7

5 AMENDMENT OF PLAN ............................................................................................... 7


1 INTRODUCTION

This Biological Monitoring Plan outlines the goals, methods, and criteria that Perennial WindChaser LLC will use to evaluate and track the success of mitigation measures designed to avoid or minimize impacts on plants and wildlife and their habitats resulting from the Perennial Wind Chaser Station project (Project). These include, but are not limited to, the following types of measures: environmental training; general habitat and wildlife impacts reduction practices; pre-construction surveys for sensitive wildlife; and seasonal and spatial disturbance buffers for active migratory bird nests or other known special-status species locations.

This plan addresses monitoring procedures to be conducted during the construction phase of the Project. Habitat restoration measures will be monitored by Perennial’s post-construction monitoring crews, as described in the Project Restoration Monitoring Plan (Exhibit P, Appendix P3).

The goals of the biological mitigation measures and monitoring procedures are to:

1. Avoid or minimize impacts on habitat and native wildlife in general as a result ofconstruction and operation of the Project; and

2. Avoid impacts on special-status plant and wildlife species that may result fromconstruction and operation of the Project.

This plan summarizes the biological mitigation measures that will be implemented during and after construction of the Project. These measures are discussed in more detail in Exhibit P, Fish and Wildlife Habitat and Exhibit Q, Threatened and Endangered Species. The monitoring procedures described in this plan supersede any monitoring procedures discussed in these other documents. This plan has been reviewed and approved by the United States Fish and Wildlife Service (USFWS), the Oregon Department of Energy (ODOE), and the Oregon Department of Fish and Wildlife (ODFW).

2 SITE DESCRIPTION AND NATURE OF IMPACTS

The Project will be located on private lands in Umatilla County, Oregon. The Project’s Energy Facility Site is located in an agricultural field that is surrounded on three sides by roads, railroads, industrial property (Hermiston Generating Plant and Lamb-Weston agricultural processing plant), light industrial property (FedEx package distribution facility), and a large cattle stock yard. A natural gas pipeline is to be constructed within an existing 50-foot right-of-way, also primarily on agricultural land, that extends south for 4.63 miles. An existing transmission line will be upgraded (reconductored) to accommodate the Project (requiring only two new poles at the north boundary of the Station), and a new step-up substation will be


constructed on agricultural land adjacent to the Bonneville Power Administration’s existing McNary Substation.

The Project is expected to impact 60.15 acres total: 23.48 acres at permanent aboveground facilities and 36.67 acres at temporary impacts areas. These impacts include 2.03 acres of temporary disturbance in shrub-steppe habitat, 22.36 acres of temporary impacts on weedy grasslands, and 22.03 acres of permanent impacts on weeds grasslands.

In most cases, the intensity of construction impacts on vegetation and habitat in temporary disturbance areas will be low and will be limited to the flattening of vegetation by rubber-tired vehicles. In some instances, the intensity of impacts in temporary disturbance areas will be higher and will require the removal of topsoil and vegetation for grading, excavation, or drilling activities. Most of the shrub-steppe and grassland habitats present in the Project area were heavily disturbed prior to construction and supported a large proportion of non-native plants (including a high abundance of cheatgrass).

3 SUMMARY OF RESTORATION MEASURES

The following sections summarize the measures to be implemented during construction of the Project that may be relevant to monitoring procedures. These sections are intended for use as a reference by field monitoring personnel.

3.1 General Fish and Wildlife Habitat Measures

The goal of the general fish and wildlife habitat measures is to avoid or minimize impacts on plants and wildlife and their habitats.

The following measures will be implemented by Perennial to avoid and/or minimize impacts on fish, wildlife, and their habitats:

• All Project personnel will attend an environmental training session prior to entering theProject right-of-way. The training will cover topics related to the Project’senvironmental compliance, including, but not limited to, approved Project boundariesand access roads; sensitive wetland and waterbody resources; special-status plant andwildlife species; basic avoidance and minimization measures that Perennial willimplement for the Project; the role of onsite biologist or monitors; the notificationprocess to be followed if workers identify new sensitive resources; the majorenvironmental laws and regulations that apply to the Project; and the penalty for notcomplying with laws or regulations.

• The Project will be designed, constructed, maintained, and operated following currentAvian Power Line Interaction Committee guidelines to minimize risk of avian mortality.


• Any herbicides used during construction and operations and maintenance will be appliedaccording to label instructions and any federal, state, and local regulations.

• Perennial will restrict vehicular travel to the right-of-way and other established areaswithin the construction, access, or maintenance easement(s).

• Roads not otherwise needed for maintenance and operations will be restored to pre-construction conditions, to the extent practicable.

• Every construction crew will carry appropriate emergency spill response equipment. If aspill occurs, the crew will temporarily halt work to contain and clean up the material andeliminate the source of the spill before resuming work.

• Perennial will restrict the refueling and maintenance of vehicles and the storage of fuelsand hazardous chemicals within at least 100 feet of wetlands, surface waterbodies, andgroundwater wells, or as otherwise required by federal, state, or local regulations.

• Perennial will conduct construction and scheduled maintenance activities during daylighthours, to the extent practicable.

• Perennial will impose speed limits during construction for access roads to reduce dustemissions, maintain safety, and protect wildlife.

• Perennial will restore all temporary construction-related areas to pre-constructionconditions or better after work has been completed.

• Perennial will minimize compaction of soils and rutting through appropriate use ofconstruction equipment (e.g., low ground-pressure equipment and temporary equipmentmats).

• Perennial will minimize the amount of time that any excavations remain open.• Perennial will identify, control, and minimize the spread of non-native invasive species

and noxious weeds, to the extent practicable.

• Perennial will clearly demarcate boundaries of environmentally sensitive areas duringconstruction to increase visibility to construction crews.

• Nesting raptors: If construction-related activities occur during the raptor breeding season(February 1 through August 31), pre-construction surveys will be conducted within 0.5miles of all proposed Project features for ferruginous hawk (Buteo regalis) nests, andwithin 0.25 miles for all other raptor species nests, including burrowing owl (Athenecunicularia) burrows. If active nests are located, construction-related activities would berestricted within 0.5 miles of ferruginous hawk nests and 0.25 miles of all other raptornests until the nests have failed or chicks have fledged. A biologist will monitor thestatus of the active nests daily during nearby active construction and document potentialadverse interactions with the Project. Spatial restrictions around active raptor nests maybe reduced through consultation with ODFW and the USFWS when considering factors


such as the visibility of the Project from the nest, topography, existing human disturbances, and the presence of nest monitors.

• Nesting migratory bird species (non-raptor): If construction-related activities occurduring the migratory bird breeding season (March 15 through August 15) for Lewis’swoodpecker (Melanerpes lewis), willow flycatcher (Empidonax traillii adastus), yellow-breasted chat (Icteria virens), tricolored blackbird (Agelaius tricolor), and other birdspecies, pre-construction surveys will be conducted within 20 feet of all proposed Projectfeatures for nests of all native, non-raptor species. Given the diversity of speciespotentially occurring in the vicinity of the Project, their varying nest initiation dates, andthe possibility of multiple clutches by some species, pre-construction nest surveys fornon-raptors will be valid for two weeks. If active nests are located, the Project willconsult ODFW and USFWS to determine appropriate measures to take, which mayinclude limiting construction-related activities within 20 feet of the nests until the nestshave failed or chicks have fledged, and/or continuing proposed activities with thepresence of a biological monitor. A biologist will monitor the status of active nests dailyduring nearby active construction and document potential adverse interactions with theProject.

• If the roost of a California myotis (Myotis californicus), an Oregon sensitive species, isobserved incidentally during other biological surveys of the right-of-way, Perennial willconsult ODFW to determine what, if any, appropriate measures to take. Potentialmeasures include implementing a spatial disturbance buffer and/or continuing proposedactivities with the presence of a biological monitor.

• If construction occurs during important time periods (e.g., breeding, migration, etc.) or atclose distances to environmentally sensitive areas, Perennial will consult with theUSFWS, ODFW, and Oregon Department of Agriculture (ODA) for guidance onseasonal and/or spatial restrictions designed to avoid and/or minimize adverse effects.

• Perennial will establish streamside management zones within 50 feet of both sides ofintermittent and perennial streams and along margins of bodies of open water whereremoval of low-lying vegetation is minimized.

• Perennial will selectively apply herbicides, if used, within streamside management zones.

3.2 Threatened and Endangered Species Measures

The following measures will be implemented by Perennial to avoid and/or minimize impacts on federal and state threatened and endangered species:

• Fish: To avoid or minimize impacts on steelhead (Middle Columbia River,[Onchorhynchus mykiss]), bull trout (Salvelinus confluentus), margined sculpin (Cottusmarginatus), Pacific lamprey (Lampetra tridentata), and other fish species, Perennial willestablish streamside management zones within 50 feet of both sides of intermittent and


perennial streams where removal of low-lying vegetation is minimized. The pipeline right-of-way crosses three irrigation canals, but no streams or rivers; however, it does come close to the Umatilla River.

• Northern sagebrush lizard (Sceloporus graciosus graciosus): Perennial will survey fornorthern sagebrush lizard in areas of sagebrush and other shrubby habitat that will beimpacted by ground disturbance. If northern sagebrush lizards are discovered, Perennialwill consult with the USFWS, ODFW, and ODA for guidance on seasonal and/or spatialrestrictions designed to avoid or minimize adverse effects.

• Bats: For small-footed myotis (Myotis ciliolabrum), long-eared myotis (Myotis evotis),long-legged myotis (Myotis volans), Yuma myotis (Myotis yumanensis), and pallid bat(Antrozous pallidus), Perennial will examine any structures (cliffs, caves, mines, fissures,under boulders, buildings, under bridges, and trees) within the construction corridor thatcould potentially be roost sites. If any bat roosts are discovered, Perennial will consultwith the USFWS, ODFW, and ODA for guidance on seasonal and/or spatial restrictionsdesigned to avoid or minimize adverse effects.

• Washington ground squirrel (Urocitellus washingtoni): Pre-construction surveys will beconducted prior to any ground disturbance in areas with suitable habitat. If any Projectcomponents that require ground disturbance are located within 1,000 feet of potentialWashington ground squirrel habitat (excluding tilled agricultural lands or developedareas), Perennial’s biologists will conduct transect surveys to determine if squirrels arepresent, as land access allows. These surveys will follow the protocols coordinated withthe ODFW and detailed in the 2013 Biological Resources Survey Report (Exhibit P,Appendix P-1). If Washington ground squirrels are found within the 1,000-foot buffer,ODFW and USFWS will be consulted to determine the best mitigation measures to avoidor reduce adverse impacts. Potential measures include prohibiting or restrictingconstruction-related activities within an appropriate buffer, or continuing proposedactivities with the presence of a biological monitor.

• Robinson’s onion (Allium robinsonii) and Laurence’s milkvetch (Astragalus collinus var.laurentii): Pre-construction surveys will be conducted for Robinson’s onion andLaurence’s milkvetch prior to any ground disturbance in areas with suitable habitat. Ifany individuals of these plants are discovered, Perennial will consult with the USFWS,ODFW, and ODA for guidance on spatial restrictions designed to avoid or minimizeadverse effects.

4 MONITORING PROCEDURES

Perennial will monitor the implementation and effectiveness of biological mitigation measures during construction. Potential impacts on biological resources as a result of constructing the Project are expected to be temporary and short term after implementation of the measures


summarized above and should dissipate soon after completion of construction as sites are restored and revegetated. Therefore, these measures will be monitored during the construction phase of the Project.

Perennial’s onsite environmental inspectors will oversee the implementation of, and inspect, the general fish and wildlife mitigation measures listed above that do not involve plant or wildlife surveys or onsite construction monitoring. In general, impacts avoidance measures and techniques, such as erosion control measures, demarcation of sensitive areas, will be inspected on a daily basis in areas of active construction. In Project areas where construction is not actively occurring, these inspections will take place at least once per week.

Perennial will provide qualified biologists to conduct pre-construction surveys for special-status species in areas where suitable habitat is present. Threatened and endangered species that may require pre-construction surveys include Washington ground squirrel and Laurence’s milkvetch. Pre-construction surveys will also include searches for nesting raptors and other migratory bird species. If active nests are observed, Perennial will coordinate with the USFWS and ODFW to determine what seasonal and spatial disturbance buffers are needed. If agency-required nest disturbance buffers intersect the Project area, biological monitors will monitor the nests until eggs have hatched and chicks have fledged and left the nest area. In some cases, the USFWS and ODFW may approve working within a typical disturbance buffer for an active nest, provided that a biological monitor remains onsite throughout construction in that area to monitor for altered behavior of the nesting bird. The environmental inspectors and biological monitors will coordinate on a daily basis, or as needed, to ensure compliance with all Project environmental conditions and regulatory requirements pertaining to sensitive plants and wildlife, and their habitats.

Post-construction studies by Perennial’s restoration monitoring crews will assess the success of habitat restoration efforts. Therefore, this Biological Monitoring Plan does not address monitoring beyond the construction phase of the Project.

4.1 Remedial Action and Maintenance

Following the inspection or monitoring of biological measures, as described above, Perennial’s environmental inspectors or biological monitors may suggest and implement corrective actions. Common corrective measures may include, but are not limited to, additional environmental training of Project personnel, adjustment of nest buffers at approval of agencies, further reduction of speed limits in specific Project areas, addition of biological monitors to specific crews or Project areas, and installation of additional signage.

If the monitors or environmental inspectors recommend remedial actions, these recommendations will be provided in the daily report to Perennial. Perennial will make every attempt to implement the recommended remedial actions as soon as possible, considering the


season, weather conditions, and other site-dependent constraints. In general, remedial actions for plant and wildlife impacts avoidance should be implemented within 24 hours, if not immediately by the inspector or monitor. Perennial will document the implementation and monitoring of biological measures.

4.2 Monitoring Schedule

Monitoring and inspection of biological mitigation measures will begin prior to construction when pre-construction surveys are conducted and will continue through completion of construction. In general, impacts avoidance measures and techniques, such as erosion control measures, demarcation of sensitive areas, will be inspected on a daily basis in areas of active construction. In Project areas where construction is not actively occurring, these inspections will occur at least once per week. When biological resources (e.g., active migratory bird nests) require onsite monitoring, this will typically occur on a daily basis, or as appropriate.

4.3 Reporting

Perennial will provide monthly status reports during construction to ODOE, USFWS, and ODFW that report any adverse interactions between Project construction and sensitive plants and wildlife. Within two months of completion of the construction phase of the Project, Perennial will submit a final Project report to ODOE, USFWS, and ODFW that summarizes all plant and wildlife impacts, habitat impacts, mitigation measures implemented, and the results of inspection and monitoring during construction, including any corrective actions that were implemented.

5 AMENDMENT OF PLAN

Perennial anticipates completing the procedures provided in this plan; however, the methods and timing could be altered at the request of USFW and ODFW. This Biological Monitoring Plan may be amended by agreement of Perennial and ODOE. Amendments will be prepared in consultation with USFWS and ODFW and may be made without altering the site certificate.

Appendix E Perennial Wind Chaser Station

Draft Memorandum of Understanding


MEMORANDUM OF UNDERSTANDING

THE CLIMATE TRUST AND PERENNIAL-WINDCHASER, LLC

CARBON DIOXIDE STANDARD IMPLEMENTATION

MONETARY PATH PAYMENT REQUIREMENT

WITH A STANDBY LETTER OF CREDIT

THIS MEMORANDUM OF UNDERSTANDING (this “Agreement”) is entered into as of the ___ day of _________, 201_, by and between Perennial-WindChaser, LLC (the “Project Owner”) in its capacity as owner of the Perennial Wind Chaser Station, and The Oregon Climate Trust (“The Trust”).

RECITALS

1. The Project Owner intends to design, finance, and construct, own and operate a natural gas-fired combustion turbine electric generating facility capable of generating up to a totalnominal electric power output of about 415 MW in Umatilla County, Oregon (“the Facility”).

2. The State of Oregon requires new energy facilities to meet a carbon dioxide emissionsstandard as described in OAR 345-024-0550 through -0710. This is a non-base load powerplant, as described in OAR 345-0245-0590.

3. As a condition to the siting of the Facility, the Project Owner is required to provide offset funds (“Offset Funds”) and selection and contracting funds (“Selection and Contracting Funds”) to The Trust. In accordance with Condition PRE-CD-06 (Final Order Condition S.6) of the Site Certificate for the Perennial Wind Chaser Station (the “Site Certificate”) that the Oregon Energy Facility Siting Council (the “Council”) granted to the Project Owner, dated XXXX, the Project Owner shall establish a third-party standby letter of credit (the “Letter of Credit”) in The Trust’s name, acceptable to the Council, sufficient to meet the monetary path requirement. Under the terms and conditions of this Agreement, the monetary path payments shall be disbursed to The Trust as specified in the Site Certificate and by The Trust as specified in OAR 345-024-0710.

4. The Trust is a qualified organization within the meaning of OAR 345-001-0010(46).

NOW, THEREFORE, in consideration of the premises and mutual promises herein contained, the parties hereto agree as follows:

1. Initial Non-Base Load Monetary Path Payment for the Facility.

1.1 The Project Owner has used the monetary path payment requirement calculations

described in Conditions PRE-CD-02 (Final Order Condition S.2) and PRE-CD-03 (Final Order Condition S.3) of the Site Certificate to calculate the Initial Non-Load Monetary Path Payment amount for the Facility and has submitted them to the Oregon Department of Energy (the “Department”) for verification. The Site Certificate requires that all monetary path payment be adjusted for inflation to the date of disbursement to The Trust using the U.S. Gross Domestic Product Implicit Price Deflator, Chain-Weight, published in the then current “Oregon Economic and Revenue Forecast” (the “Index”). The Project Owner and the Trust acknowledge that the calculation of the Initial Non-Base-Load Monetary Path Payment in [Index date] dollars presented in Appendix A is correct and consistent with the Site Certificate.

1.2 Based on the calculations of the Initial Non-Base Load Monetary Path Payment

amount set forth in Appendix A, the Project Owner shall pay to The Trust the Inflation-Adjusted Selection and Contracting Funds in the amount of $___________ before beginning construction of the Project. The Site Certificate requires that the amount of the Selection and Contracting Funds portion of the Initial Non-Base Load Monetary Path Payment be adjusted for inflation to the date of disbursement to the Trust using the Index.

1.3 Based on the verified calculations of the Initial Non- Base-Load Monetary Path

Payment set forth in Appendix A, the Project Owner shall pay to the Trust $___________ in inflation-adjusted Offset Funds. The Site certificate requirements that the amount of the Offset Funds portion of the Initial non-base load monetary path payment be adjusted for inflation to the date of disbursement to the Trust using the Index.

1.4 The Project Owner shall establish a Letter of Credit in the amount of $_________ in

favor of The Trust, in the form attached as Appendix B to this Agreement. The effective date of the Letter of Credit shall be on or prior to the date on which Project Owner commences construction of the Project. The Trust shall be entitled to draw the entire amount of the Offset Funds secured by the Letter of Credit pursuant to Section 1.6 or Section 1.7 below and the terms of the Letter of Credit. The Project Owner shall pay the costs of establishing and maintaining the Letter of Credit and shall pay any transaction fees assessed by the issuer of the Letter of Credit.

1.5 The Trust shall have the right to request Offset Funds from the Project Owner as

provided in ORS 469.503(2)(d)(A) upon execution of a letter of intent to acquire an offset project. At the sole discretion of The Trust, the amount of Offset Funds drawn may equal the entire amount of Offset Funds available. The Trust may request from the Project Owner less than the entire amount of the Offset Funds, but in no case shall the cumulative amount of all requests exceed the total Monetary Path Payment Requirement, as adjusted for inflation.

1.6 If the Project Owner fails to pay Offset Funds as requested by The Trust within ten

(10) business days from the date of such request, The Trust may draw the sum of the Letter of Credit for the full or remaining amount of the Offset Funds.

1.7 Notwithstanding Sections 1.5 and 1.6, if the Project Owner fails to renew the Letter of Credit in a timely manner, The Trust may draw the sum of the Letter of Credit for the full or remaining amount of Offset Funds prior to the Expiration Date of the Letter of Credit pursuant to Exhibit B of the Letter of Credit.

1.8 Because of the need to establish a Letter of Credit with sufficient funds to cover withdrawal up to the end of a future period calculated by application of the Index, the amount of the Letter of Credit on any date may be greater than the entire amount of Offset Funds required by the monetary path, as adjusted for inflation. If there are funds available under the Letter of Credit after The Trust has withdrawn the entire amount of Offset Funds under the Monetary Path Payment Requirement, the Project Owner may terminate the Letter of Credit after The Climate Trust certifies to the Department that it has received full monetary path payments and verification by the Department that the funds remaining in the Letter of Credit are excess of the Project Owner’s obligations pursuant to Section 1.

2. Year One True-Up Non-Base-Load Monetary Path Payment.2.1 Within the first 12 months of commercial operation of the facility, the certificate

holder shall conduct a 100-hour test (Year One Test) pursuant to Condition OPR-CD-01 (Final OrderCondition S.8,) or, if a Year One test is not performed, pursuant to Condition S.9, the certificate holder shall report the actual measured carbon dioxide emissions reported to the Department of Environmental Quality or the U.S. Environmental Protection Agency. Within 30 days of filing its Year One Test reports to the Council, pursuant to Condition PR-CD-01 (Final Order Condition S.8) or OPR-CD-02 (Final Order Condition S.9), the Project Owner shall re-calculate the initial monetary path payment requirement (the Year One True-Up Non-Base-Load Monetary Path Payment), as required by Condition OPR-CD-03 (Final Order Condition S.10 of the Site Certificate. The Project Owner shall submit these calculations to the Oregon Department of Energy for verification, as required by Conditions S.10 of the Site Certificate.

2.2 The Year One True-Up Non-Base-Load Monetary Path Payment, if any, shall be adjusted for [Index date] dollars to the date of disbursement using the Index.

2.3 If any Year One True-Up Non-Base-Load Monetary Path Payment exceeds the sum of the initial non-base load monetary path payment, the Project Owner shall pay the excess amount directly to The Trust within 30 days after its notification by the Department of the amount that project owner owes.

2.4 In no case shall the calculations under this Section 2 result in a refund to the Project

Owner of any amount already paid to the trust.

3. Periodic Five-Year Reporting Period

3.1 Each five years after beginning commercial operation, if the Project Owner has elected to calculate any excess emissions using annual average hours operation and new and clean heat rates, pursuant to Condition OPR-CD-01 (Final Order Condition S.8), the certificate holder shall report the annual average hours of operation of each generating unit within the facility during that five-year reporting period. If the Project Owner has elected to calculate any excess emissions using actual or measured carbon dioxide emissions reported to either the

Oregon Department of Environmental Quality or the U.S. Environmental Protection Agency, pursuant to Condition OPR-CD-02 (Final Order Condition S.9), the Project Owner shall submit to the Council the carbon dioxide reporting data and net kWh generation for that five-year reporting period and shall use that data. t

3.2 If the Department of Energy determines that there are excess emissions for the five-year report period, in determining the excess carbon dioxide emissions that the Project Owner must offset for a five-year period, the Council shall credit the certificate holder with offsets equal to the difference between the carbon dioxide emissions allowed by the site certificate in previous periods and actual emissions, if actual emissions were lower than allowed, unless the certificate holder has elected to utilize actual or measured carbon dioxide emissions as reported to either the Oregon Department of Environmental Quality or the U.S. Environmental Protection Agency pursuant to a mandatory carbon dioxide reporting requirement. Once the Project Owner has used the credit, the Project Owner shall not use it again. The Project Owner shall pay for the excess emissions at $1.27 per ton of carbon dioxide emissions (in 2015 dollars). The Department shall notify the certificate holder and The Climate Trust of the amount of the payment required, using the monetary path, to offset excess emissions.

3.3 For any Periodic Five-Year Reporting Period Monetary Path Payment, the Selection and Contracting Funds shall be equal to 10 percent of the value of any Offset Funds of the first $500,000 ([Index year] dollars) and 4.286 percent of the value of any Offset Funds in excess of $500,000 ([Index year] dollars).

3.4 The Project Owner shall pay to The Trust the specified amount of any Periodic Five-Year Reporting Period Monetary Path Payment within 30 days of its notification by the Department of the amount that the Project Owner owes.

4. Undertaking by The Trust.

4.1 The Trust shall use the Initial Non-Base-Load Monetary Path Payment as well as any Year One True-Up Non-Base-Load Monetary Path Payment and/or Periodic Five-Year Reporting Period Monetary Path Payments in accordance with OAR 345-024-0710.

4.2 With respect to the Offset Funds portions of any Initial Non-Base-Load Monetary Path Payment, Year One Non-Base-Load Monetary Path Payment, or Periodic Five-Year Reporting Period Monetary Path Payments, The Trust shall spend at least 80 percent of the Offset Funds for contracts to implement offsets, and may use up to 20 percent of the Offset Funds for monitoring, evaluation, administration, and enforcement of contracts to implement offsets. The Trust shall spend Offset Funds solely for contracts to implement offsets or for monitoring, evaluation, administration, and enforcement of contracts to implement offsets.

4.3 The Selection and Contracting Funds portions of any Initial Non-Base-Load Monetary Path Payment, Year One Non-Base-Load Monetary Path Payment, and Periodic Five-Year Reporting Period Monetary Path Payments shall compensate The Trust for its costs of selecting offsets and contracting for the implementation of offsets and administrative costs related to operating The Trust as a qualified organization.

4.4 The Trust shall use its best efforts to remain a qualified organization, as defined in OAR 345-001-0010(45), until The Trust has used all funds received from the Project Owner.

5. Limited Obligation of Project Owner.

The Trust acknowledges that, pursuant to OAR 345-024-0710(3), the Project Owner and the Project shall have no obligation with regard to offsets for the Project other than to make available to The Trust the total amount of the monetary path payments.

6. Limited Participation by Project Owner in The Trust Decision Making.

The Project Owner may appoint one nonvoting member to the Board of Directors of The Trust for a term lasting until The Trust has completed the contracting for the offset funds provided by the Project Owner for The Facility. The Project Owner shall have no approval rights over The Trust’s offset contracts, disbursement of Offset Funds, or other day-to-day operations of The Trust.

7. Project Owner Agreement to Indemnify and Hold The Trust Harmless.

The Project Owner agrees to defend, hold harmless and indemnify The Trust from and against any and all claims, costs, liabilities, and expenses of any nature whatsoever, including reasonable attorneys' fees, resulting from or arising out of any failure by the Project Owner to make any payments required by this Agreement, or to establish and maintain the Letter of Credit described in Section 1.4 in a timely manner; PROVIDED, that the maximum amount of the Project Owner's liability to The Trust for claims, costs, liabilities and expenses, including attorneys' fees, arising out of the failure to make a payment or establish the Letter of Credit required by this Agreement in a timely manner shall not exceed twice the differential between the amount payable to The Trust on a particular date and the amount actually paid or made available to The Trust on or before that date. FURTHER PROVIDED, The Trust must make reasonable efforts to mitigate any losses, liabilities or expenses for which it seeks indemnification from the Project Owner.

8. General Provisions.

8.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the State of Oregon. Any ambiguity that may arise under this Agreement shall be given a fair and reasonable construction in accordance with the intention of the parties and without regard to which party caused or is deemed to have caused such ambiguity to exist.

8.2 Amendments and Waivers: This Agreement may not be modified, supplemented, altered or amended, or any provision hereof or rights hereunder deemed be waived, except by an instrument in writing designated as an amendment of or waiver under this Agreement and signed by both parties. The waiver of any particular breach or default hereunder shall not constitute a waiver of any other breach or default. Failure or delay by any party to enforce any provision of this Agreement shall not in any way be

construed as a waiver of such provision, nor shall it prevent such party from thereafter enforcing each and every provision of this Agreement.

8.3 Entire Agreement: This Agreement constitutes the entire agreement between the parties hereto as to the matters set forth herein, and all prior proposals, commitments, understandings and agreements, whether oral or in writing, as to such matters are superseded by this Agreement.

8.4 Assignment: The rights of the Project Owner under this Agreement may be assumed by any entity that acquires an ownership interest in the Project. Upon such assumption, such entity shall be deemed to be a party to this Agreement. The Trust may not assign this Agreement without the prior consent of the Project Owner and Council; provided that, if the proposed assignee is a “qualified organization” as defined in OAR 345-001-0010(45), the Project Owner shall not unreasonably withhold such consent.

8.5 Third-Party Beneficiaries: Nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies on any persons other than the parties hereto and their respective authorized successors and permitted assigns.

IN WITNESS WHEREOF, the parties have caused this Memorandum of Understanding to be executed by their respective duly authorized representatives, as of the day and year first above written.

PERENNIAL WIND CHASER STATION , LLC THE OREGON CLIMATE TRUST

By: By:

Name: Name:

Title: Title:

Date: Date:

APPENDIX A: CALCULATION OF INITIAL BASE-LOAD AND POWER AUGMENTATION MONETARY

PATH PAYMENT REQUIREMENT [NOT INCLUDED IN SITE CERTIFICATE]

APPENDIX B: STANDBY LETTER OF CREDIT

APPENDIX B TO MEMORANDUM OF UNDERSTANDING

[FORM OF CLIMATE TRUST LETTER OF CREDIT]

IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER [Insert number]

[Date]

THE OREGON CLIMATE TRUST

516 SE Morrison, Suite 300

Portland, OR 97214-2343

Ladies and Gentlemen:

At the request and for the account of Perennial-WindChaser, LLC (PER), address 300 Madison Avenue,, New York, NY 10017 , for its Perennial Wind Chaser Station , we, [INSERT BANK NAME HERE], hereby establish effective immediately, in favor of you, THE CLIMATE TRUST ("Beneficiary"), this Irrevocable Standby Letter of Credit Number [Insert number ] (the "Letter of Credit") in the amount of USD ____________(as such amount may be reduced from time to time by partial draws hereunder, the "Stated Amount").

This Letter of Credit is being issued in connection with Site Certificate for the Perennial Wind Chaser Station with the STATE OF OREGON, dated _____as may be amended from time to time.

This Letter of Credit is issued, presentable, and payable at our offices at [Drawing address], and expires with our close of business on ________ (the present or any future expiration date is referred to herein as the "Expiration Date").

It is a condition of this Letter of Credit that it shall be automatically extended without amendment for successive one (1) year periods from the present or any future Expiration Date hereof, unless we provide you with written notice of our election not to renew this Letter of Credit at least sixty (60) days prior to any such Expiration Date. For the purposes hereof, "Business Day" shall mean any day on which commercial banks are not authorized or required to close in _____. Subject to the terms and conditions herein, funds under this Letter of Credit are available at sight against your draft drawn on us bearing upon its face the clause "Drawn under _____________ and accompanied by the following documents:

1. The original of this Letter of Credit and all subsequent amendments, if any; and

2. Your sight draft drawn on us; and

3. A dated draw certificate purportedly signed by an authorized officer of the Beneficiary and onBeneficiary's letterhead in the form of attached Exhibits A or B to this Letter of Credit (incorporated herein by reference and made an integral part hereof).

Partial and multiple draws are permitted under this Letter of Credit, provided that the Stated Amount of this Letter of Credit shall be permanently reduced by the amount of each such draw. This Letter of Credit may not be transferred or any of the rights hereunder assigned. Any purported transfer or assignment shall be void and of no force or effect. _____ agrees that a draft drawn and

presented in conformity with the terms of this Letter of Credit will be duly honored upon presentation. If a draft made by Beneficiary does not conform to the terms and conditions of this Letter of Credit, we will give Beneficiary prompt notice that the demand for payment will not be effected. Such notice will include a statement of reasons for the denial. Upon being notified that the demand for payment was not effected in conformity with this Letter of Credit, Beneficiary may attempt to correct the nonconforming demand; provided, however, that any draft or document prescribed to correct such nonconforming demand must be provided on or prior to the Expiration Date.

This Letter of Credit sets forth in full our undertaking and such undertaking shall not in any way be modified, amended, amplified or limited by reference to any documents, instruments or agreements referred to herein, except only the exhibits referred to hereby and any such reference shall not be deemed to incorporate by reference any document, instrument or agreement except for such exhibits

This Letter of Credit shall be governed by the Uniform Customs and Practice for Documentary Credits, 2007 Revision, International Chamber of Commerce Publication No. 600 (the "UCP"), As to matters not covered by the UCP, this Letter of Credit shall be governed by the laws of the State of Oregon without regard to the principles of conflicts of laws thereunder.

_________________ _________________

Authorized Signature

[THE CLIMATE TRUST LETTERHEAD]

DRAW CERTIFICATE

[DATE]

[To Issuing Bank]

Drawn under Irrevocable Standby Letter of Credit Number _________

Any capitalized term used herein shall have the meaning defined for that term by the Letter of Credit.

The undersigned, the duly elected and acting _________ of the Beneficiary, hereby certifies as follows:

1. Perennial WindChaser, LLC has failed to pay Offset Funds to The Climate Trust for theMonetary Path Payment Requirements described in the Site Certificate for the PerennialWind Chaser Station , as amended from time to time, (the "Site Certificate") within the timeprovided in the Memorandum of Understanding between The Climate Trust and Perennial-WindChaser, LLC for the Carbon Dioxide Standard Implementation of the Monetary PathPayment Requirement With A Standby Letter Of Credit (“Memorandum of Understanding”).

2. As a result of said failure to pay, the Beneficiary is entitled pursuant to the provisions of theSite Certificate and the Memorandum of Understanding to make demand under the Letter ofCredit in the amount of $_________.

3. The undersigned has concurrently presented to you its sight draft drawn in the amountspecified in Paragraph 2 above, which amount does not exceed the lesser of (a) the amountthe Beneficiary is entitled to draw pursuant to the provisions of the Site Certificate andMemorandum of Understanding, and (b) the Stated Amount as of the date hereof. The date ofthe sight draft is the date of this Certificate, which is not later than the Expiration Date.

4. Funds paid pursuant to the provisions of the Letter of Credit shall be wire transferred to theBeneficiary in accordance with the following instructions:

_______________________

_______________________

_______________________

IN WITNESS WHEREOF, the Beneficiary has executed and delivered this certificate as of [Date].

THE CLIMATE TRUST as Beneficiary

By: ____________________

Title:___________________

EXHIBIT B

[THE CLIMATE TRUST LETTERHEAD]

DRAW CERTIFICATE

[Date]

[Insert Bank Information]

Attention: Letter of Credit Manager

Drawn under Irrevocable Standby Letter of Credit Number ___________

Ladies and Gentlemen:

Any capitalized term used herein shall have the meaning defined for that term by the Letter of Credit.

The undersigned, the duly elected an acting ________ of the Beneficiary, hereby certifies as follows:

1. [Bank] as heretofore provided written notice to the Beneficiary of the Bank's intent not torenew the Letter of Credit following the present Expiration Date thereof.

2. Perennial-WindChaser, LLC is required to deliver to the Beneficiary and keep in effect, aletter of credit that satisfies the requirements of Condition S.8 of the Site Certificate for the Perennial Wind Chaser Station, as amended from time to time (the "Site Certificate").

3. Neither Perennial-WindChaser, LLC nor any person acting on its behalf has, at leasttwenty (20) days prior to the present Expiration Date of the Letter of Credit, delivered to Beneficiary a letter of credit that satisfies the requirements of Condition S.6 of the Site Certificate.

4. As a result of said failure to deliver a replacement letter of credit at least 20 days prior tothe present Expiration Date of the Letter of Credit, the Beneficiary is entitled pursuant to the provisions of the Site Certificate and the Memorandum of Understanding to make demand under the Letter of Credit in the amount of $ ____________.

5. The undersigned has concurrently presented to you its sight draft drawn in the amountspecified in Paragraph 4 above, which amount does not exceed the lesser of (a) the amount the Beneficiary is entitled to draw pursuant to the provisions of the Site Certificate and the Memorandum of Understanding, and (b) the Stated Amount as of the date hereof. The date of the sight draft is the date of this Certificate, which is not later than the Expiration Date.

6. Funds paid pursuant to the provisions of the Letter of Credit shall be wire transferred tothe Beneficiary in accordance with the following instructions:

_______________________

_______________________

IN WITNESS WHEREOF, the Beneficiary has executed and delivered this certificate as of the [Date].

THE CLIMATE TRUST as Beneficiary

By: ____________________

Title: ____________________

Appendix F Perennial Wind Chaser Station

Comment Index


DateOfDoc From: Last Name From: First Name From: OrganizationType

Issue(s) Raised Consideration in Proposed Order

5/7/2015 Smith Byron

City of Hermiston & Port of Umatilla

Written

Facility's use and reliance upon Port of Umatilla water right and the necessary infrastructure upgrades in order to provide water to the facility

Section IV.B.: Organizational Expertise and Section IV.R.: Ground Water

5/7/2015 Harrison Glenn N/A

WrittenFacility's impact on oregon trails

Section IV.F.: Protected Areas and Section IV.L.: Recreation Standard

5/14/2015 Murdock George

Umatilla County Board of Commissioners

Written

Requested that each specific land use permit to be issued to be identified within a condition; requested the applicant enter into a development agreement with the County to address road improvements, including icing and fogging as a result of facility operation; requested clarification of the Council's enforcement of the noise standard

Section IV.E.: Land Use; Section IV.M.: Public Services; and Section IV.P.:

Noise

5/14/2015 Pedro Lawrence N/A

Oral

Impact of reconductored transmission line on agriculture pivots

Section IV.O.: Siting Standards for Transmisison Lines

5/14/2015 Echeverria Dixie ELH, LLC

Oral

Placement of proposed natural gas line and potential icing of roadways associated with the facility's plume during operation

Section II.B; Section IV.M.: Public Services

5/14/2015 Little Chuck

Pendleton Building Construction Trades

Council

Oral In support of the facility General Suport for the Facility, not addressed in the Proposed Order

5/14/2015 Gilbert Irene N/A

Oral

Impact of the facility's plume on military airspace and drones Section IV.M.: Public Services

5/14/2015 Mabbott Tamra

On behalf of Umatilla County Board of Commissioners

Oral

Summarized County's sumitted written comments (above)

Section IV.E.: Land Use; Section IV.M.: Public Services; and Section IV.P.:

Noise

before the energy facility siting council of the state of oregon · 18-09-2015 · swa state...

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